HomeMy WebLinkAboutContract 45461 CITY SECRETAW
CONTRACT NO, P-
.AG REEMENT BETWEEN THE CITY OF FORT WORTH
AND J 11\4 HIRSCHFIELD AND SONYA ISHII, LLC
FOR PRELIMINARY DESIGN OF PUBLIC ART FOR EAST ROSEDALE ROUNDABOUT
(HWY 287-MILLER)
This Agreement is entered into this day of fflibf 2014, by and between the
City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through its
duly authorized Assistant City Manager, and Jim Hirschfield and Sonya Ishii, LLC, a North Carolina
limited liability company, acting by and through its duly authorized member, James N. Hirschfield., City
has designated the Arts Council of Fort Worth and Tarrant County,Inc.,, to manage this Agreement on its
behalf.The Contract Manager shall act through its designated project manager.
WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of
Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for
Fort Worth residents,to commemorate the City's rich cultural and ethnic diversity,to integrate the design
work of Artist into the development of the City's capital infrastructure improvements, and to promote
tourism and economic vitality in the City through the Artistic design of public spaces,
WHEREAS, the City has set aside funds to commission 'Public art/design enhancements in
conjunction with the East Rosedale streetscape improvement project that is included in the Public Art
Plan for the 2004 Capital Improvement Program, adopted by the Fort Worth City Council on May 17,
2 05 (M&C G-14801);
WHEREAS, City is constructing improvements to East Rosedale Street, from Highway 287 to
Miller Avenue, in Council District 8;
WHEREAS, following feedback from the community, City consultants, and the City, it was
determined that the modem roundabout being constructed at the intersection of Mitchell Boulevard and
East Rosedale Street (2400, block of East Rosedale Street) provides the best opportunity for public
artwork, as it is adjacent to Sycamore Park with good views of downtown Fort Worth;
WHEREAS, the Fort Worth Art Commission (the "FWAC") has recommended the Project in its
Fiscal Year 2014 Annual Work Plan and Budget, adopted by the Fort Worth City Council on November
225 2013 as (M&C C-25920) as part of the City's agreement with the Contract Manager for
administration of the public art programs,
WHEREAS, on July 9, 2012, the Artist team of Jim Hirschfield and Sonya Ishii were
C)
competitively selected as the project alternate through a process outlined in the Fort Worth Public Art
rn Master Plan and conducted by the Contract Manager with oversight of the FWAC- ig
M
OFFICUIL RECORD
CITY 43"'ECREIMMY
Ft 'Mft idm RTHy
Agreement with Jlim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Ro
1 of 20
ffb
WHEREAS, the artist who was originally selected for the project chose to not continue with the
project; therefore, on January 13, 2014, the FWAC recommended that Artist, in coordination with City
and the City's Project Consultant,be retained to design an artwork for the Site;
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;
and
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 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 of Public Art for the Site.
1.2. Artist--Means and includes Jim Hirschfield and Sonya Ishii,LLC.
1.3. Contract Manager—Means and includes the Arts Council of Fort worth and Tarrant County,
Inc., and/or its officers,directors, and employees.
1.4. City—Means and includes the City of Fort worth.
1.5. 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.
1.6.Parties—Means and includes City and Artist.
1.7. 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.
1.8. Preliminary Design Deliverables—Means and includes those items set forth in Article 2.3 of
this Agreement that Artist is required to submit to City for review and approval.
1.9. Project — Means and includes the capital improvement/public art development undertaking
of City for which Artist services are to be provided pursuant to this Agreement.
1.10. Project Stakeholders—Means and includes the appropriate City Council Members), and
their appointed community representatives and the Fort worth Art Commission's appointed
representative and others as may be appropriate.
1.11. Project Consultant—Means and includes the design firm/professional(s)hired by City to
design the Site.
1.12. Site Means and includes the planned modern roundabout at the intersection of Mitchell
Boulevard and East Rosedale Street, Fort worth, 76105, which is more particularly described in Exhibit
j.
"A,"attached hereto and incorporated herein by reference for all purposes.
Agreement with Jim Hirschfeld and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
2 of 20
L 13. Work -Means and includes the finished obj ect(s) of art and design that are the subject of
this Agreement, or any intermediary stage of completion of such Work.
ARTICLE 2
SCOPE OF SERVICES
2.1. General.
(a) Artist shall perform all services and will furnish all supplies and materials as necessary for
developing the Preliminary Design of the Work. Services shall be performed in a professional
manner and in strict compliance with all terms and conditions in this Agreement.
(b) Artist shall determine the Artistic expression, scope, design, color, size, material, and texture of the
Work, subject to review and input from Project Stakeholders and approval by City as set forth in this
Agreement.
(c) The specific location at the Site where the Work will be installed shall be mutually agreed upon by
City and Artist.
(d) Artist, upon request of Contract Manager, shall provide information and/or attend meetings with
appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and
permitting.
(e) Prior to commencing work on the Preliminary Design, Artist shall meet with and seek input from
Project Stakeholders.
(f) Artist shall explore concepts for the Work within the implementation budget set forth in Article 2.3.
(g) Artist shall design an impactful and unique artwork for the Site that is relevant to the community and
can be appreciated when viewed by motorists and pedestrians alike.
(h) Recognizing that time is of the essence and that the Project is underway, Artist shall evaluate the
footing previously engineered for the original artist's artwork design at the Site,which is included in
the City's construction documents, and coordinate with the City's Project 's ect Consultant and City's
tY J y
general contractor on any changes needed to the design of the footing.
(i) Artist may give input to the City's Project Consultant on landscaping for the Site.
p g
(�) Artist's Preliminary Design of the Work shall include preliminary dimensions and massing of the
Work, appropriately scaled to the Site, as well as preliminary lighting design, including specifying
g
the type and location of lighting fixtures.
(k) Artist shall meet and coordinate with the City, Project Consultants and others as necessary,to ensure
the Work is integrated into the Site in terms of structural support, lighting, electricity, or other
infrastructure needs to support the Work. `
(1) Artist shall present the Preliminary Design to the Contract Manager at least two weeks before
g any
formal presentations occur.
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
3 of 20
(m)Artist shall present the Preliminary Design to the appropriate City committee, City staff, Project
Stakeholders and other City boards or commissions, as appropriate, for input and to the FwAC for
review and approval at dates and times mutually agreed upon.
(n) Artist shall make a minimum of two trips to Fort Worth, Texas for meetings and presentations as
indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in
writing by City and Artist.
2.2. 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.
2.3. Preliminary Design Deliverables_
(a) within two (2) months after the Effective Date, Artist shall review previously designed footing for
the Site and provide input on any changes that may be necessary to support their Work. Artist may
consult with their engineer.
(b) Within four (4) months after the Effective Date, Artist shall provide services and all supplies,
materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.3 to
City for approval. Preliminary Design Deliverables shall consist of the following:
i. Three preliminary design illustrations showing the proposed work from three vantage points,
including a plan view, which shall be in a high resolution digital format and/or mounted on
foam core and at least 20"x 30";
ii. A narrative description of the Artist's concept, proposed materials, fabrication, lighting and
installation methods, timeline for completion and maintenance, and anticipated annual
maintenance requirements;
iii. Installation diagram, including approximate weight of the work, proposed base, footing, or
attachment method(s) and, if applicable, location(s) for any electrical wiring and lighting
fixtures; and
iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for final
design and implementation of the work in an amount not to exceed ONE HUNDRED
SIXTY SIX --THOUSAND SIX HUNDRED EIGHTY FIVE DOLLARS AND NO CENTS
($166,655.04).reflecting total costs and inclusive of remaining artist's fees, engineering fees,
travel, materials, labor, lighting, fabrication, transportation, construction, insurance,
installation, a contingency of$9,057.00 and all associated costs for the work.
4
f;
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
4of20
2.4. PreliminaKy Design Review
(a) Upon completion of the Preliminary Design Deliverables and submittal to Contract Manager in
advance, Artist shall present the Preliminary Design to the FwAC at a regularly scheduled FwAC
meeting for review and comment.
(b) After presentation to the FwAC, Artist shall meet with the designated Project Stakeholders, City
staff and other City boards or commissions, as appropriate, to present the Preliminary Design, at a
date and time mutually agreed upon,for input.
(c) After presentation of the Preliminary Design to the FwAC and Project Stakeholders, Artist shall
present the Preliminary Design to the FwAC for approval at a regularly scheduled FwAC meeting,
which may be accomplished by conference call.
(d) City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty (30)
business days of Artist's presentation to the FwAC.
(e) If City requires any revisions to the Preliminary Design, then City shall inform Artist of each
revision. City may require Artist to make such revisions to the Preliminary Design as City deems
necessary in its sole discretion and/or for the work to comply with applicable statutes, ordinances, or
regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of
safety and security.
(f) Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to
present the revised Preliminary Design in conformance with City's requirements.
(g) If City disapproves of the resubmitted Preliminary Design, any further Preliminary Design
resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in
this Article. If the Parties desire not to continue with the resubmission process, then this Agreement
will automatically terminate, with payment to the Artist per the payment schedule in Article 3 up
through the date of termination. (See Article 4.4.d)
(h) Upon City approval of the Preliminary Design, any revisions made to a City-approved Preliminary
Design shall become part of the Preliminary Design. Artist shall incorporate any City-approved
revisions into the final design in conformance with City's requirements. Any revisions shall become
part of any final design deliverables if the Artist proceeds to the final design phase. Artist shall
provide the Preliminary Design presentation materials to the Contract Manager to become part of the
City of Fort worth Public Art archive owned by City. These documents, models, and/or drawings
will be retained for archival and exhibition purposes.
(i) Upon the expiration of the Term(hereinafter defined) of this Agreement,if the Preliminary Design is
accepted by City,negotiations for final design of the work shall commence,which shall become part
of the deliverable under any potential artwork commission contract.
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
5of20
ARTICLE 3
COUiPENSATION AND PAYMENT SCHEDULE
3.1. Compensation
Total compensation under the Agreement shall be FOURTEEN THOUSAND FOUR HUNDRED
SIXTY-ONE DOLLARS AND NO CENTS ($14,461.00), 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. FOUR THOUSAND DOLLARS AND NO CENTS ($4,000.00) upon execution of this
Agreement.
ii. SIX THOUSAND DOLLARS AND NO CENTS ($6,000-00) within thirty (30) calendar days
after Artist submits all of the Preliminary Design Deliverables required under Article 2.3 of this
Agreement and makes a presentation(s)of the Preliminary Design to the FwAC.
iii. THREE THOUSAND FOUR HUNDRED SIXTY-ONE DOLLARS AND NO CENTS
($3,461.00)within thirty(30) calendar days after City's approval of the Preliminary Design.
iv. Cit ma a Artist u to ONE THOUSAND DOLLARS AND NO CENTS $1000.00 for
engineering fees to fulfill the terms of this Agreement. Such payment shall be trade upon receipt
of an invoice from Artist with the original invoice (a retainer fee of up to 50% is allowed) for
such services attached.
3.3. Sales Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due
upon the Project. City shall supply Artist with the "Texas Certificate of Exemption," in substantially the
same form as that attached hereto as Exhibit"C," 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 with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
6 of 20
ARTICLE 4
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 fon-n 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. If the Parties cannot resolve the
disputes), then the disputing party shall thereupon have the right to terminate this Agreement upon the
delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of
this Agreement under this provision shall not relieve the party in default of any liability for damages
resulting from a breach or a violation of the terms of this Agreement.
4.4. Termination for Convenience
(a) The services to be performed under this Agreement may be terminated by either party, subject to
written notice submitted thirty(30)calendar days before termination.
(b) If termination is for the convenience of City, City shall pay Artist pursuant to the payment
provision in Article 3,and Artist shall continue to provide the City with services requested by City and in
accordance with this Agreement up to the effective date of termination. Upon payment in full of all
monies due for services provided up to the effective date of termination, City shall have the right, in its
sole discretion, to possession and transfer of all work product produced by Artist under this Agreement,
including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and
designs, up to the effective date of termination, provided that no right to fabricate or execute the work
shall pass to City.
(c) If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to
pay Artist pursuant to the payment provision in Article 3 or require the Artist to remit to City a sum equal
to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of
termination. If City chooses to pay Artist, then all work product produced by Artist under this
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
7of20
Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs,
models, and designs,up to the effective date of termination shall become property of City.
(d) If termination is by mutual agreement of the Parties as set forth in Article 2.4,then City shall pay
Artist per the payment schedule in Article 3 up through the date of termination. City shall have the right
to possession and transfer of all work product produced by Artist under this Agreement, including, but
not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the
effective date of termination
4.5. Incapacity of Artist
(a) In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or
obligations under 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 incapacity. All work product
produced by Artist, including, but not limited to, finished and unfinished drawings, sketches,
photographs,models, and designs,up to the effective date of termination shall become property of City.
(b) Should Artist's Preliminary Design have been approved, in the event of termination under this
Article 4.5, City shall have the right to complete the work, if feasible. 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
(a) 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.
(b) 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 shall submit the matter to mediation 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
F
upon Agreement of the Parties. In the event City and Artist 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
Agreement with Jim Hirschfeld and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
8 of 20
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
shall have the right to exercise any and all remedies available under law regarding the dispute. (See
Article 4.3)
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 General
(a) Upon payment in full to Artist or pursuant to the applicable termination provision of this
Agreement, the Preliminary Design, Work, and all other work product under this Agreement shall
become the property of City, without restriction on future use, except as provided below. Artist shall
retain copyright and other intellectual property rights in and to the Preliminary Design and/or work. By
execution of this Agreement,Artist grant to the City an exclusive,perpetual,royalty free,and irrevocable
license to graphically depict and publicly display the Preliminary Design and/or work for any non-
commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the
Preliminary Design and/or work intended to promote or benefit City, its public services or its public
purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise
received by City,shall be deemed a non-commercial purpose.
(b) In view of the intention that the Preliminary Design and the work be unique, Artist shall not
make any additional exact duplicate reproductions of the Preliminary Design or the Work, nor shall
Artist grant permission to others to do so except with the express written permission of City. However,
nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of Artistic
expression.
(c) Artist reserve every right available under the Federal Copyright Act to control the making and
dissemination of copies or reproductions of the Preliminary 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 Preliminary Design and/or work and accompanying materials for any
municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright
notice substantially in the following form: "0 date,Artist's name."
(d) Nothing in this Agreement shall prevent the Artist from using images of the Preliminary Design
and/or Work for marketing and promotional purposes in connection with the Artist's business.
5
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
9 of 20
f
(e) City is not responsible for any third--party infringement of Artist's copyright and not responsible
for protecting the intellectual property rights of Artist.
6.2 Artist's Address.
Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if
such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right
subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this
provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's
rights.
ARTICLE 7
WARRANTIES OF TITLE AND COPYRIGHT
(a) Artist represents and warrants that:
i. Preliminary Design and/or Work shall be the original product of the Artist's sole creative
efforts.
ii. Preliminary Design 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
Preliminary Design and/or work or any copyright related thereto that may affect or
impair the rights granted pursuant to this Agreement;
iv. Preliminary Design 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 8
ARTIST AS INDEPENDENT CONTRACTOR
Artist shall perform all work and services hereunder as independent contractors, and not as
officers, agents, servants or employees 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.
s
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
10 of 20
E
ARTICLE 9
INDEMNIFICATION
9.1. General lndemnity
(a) ARTIST COVENANT AND AGREE TO AND DO HEREBY INDEMNIFY, HOLD
HARMLESS,AND DEFEND,AT THEIR 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 ANY ACTS, ERRORS, OR OMISSIONS OF ARTIST AND ITS MEMBERS,
EMPLOYEES, AGENTS, AND REPRESENTATIVES AND 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 their subcontractors to include in their subcontracts a release and
indemnity in favor of City in substantially the same forth as above.
9.2. Intellectual Pro ert
Artist agree to assume full responsibility for complying with all State and Federal Copyright Laves 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 warps 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,
i
INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL
Agreement with Jim Hirschfeld and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
II of 20
4
CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND
DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH
THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE
WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR
OTHER LACK OF OWNERSHIP,AUTHORSHIP,OR ORIGINALITY. City expressly assumes no
obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive
obligation of Artist.
9.3. Survival
All indemnification provisions of this Agreement shall survive the termination or expiration of this
Agreement.
ARTICLE 10
EQUAL OPPORTUNITY
(a) Artist shall not engage in any unlawful discrimination based on race, creed, color, national
origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any
other prohibited criteria in any employment decisions relating to this Agreement, and Artist
represent and warrant 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's 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 I I
MISCELLANEOUS
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
City.
Agreement with Jim Hirschfeld and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
12 of 20
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 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 its respective successors and permitted assigns.
11.7. No Third-Party Beneficiaries
The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any
lawful successor or assign, and are not intended to create any rights, contractual, or otherwise, to any
other person or entity.
11.8 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 Ma'eure
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 with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
13 of 20
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
If, for any reason, at any time during any term of this Agreement, the Fort worth City Council fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may
terminate this Agreement to be effective on the later of(i) thirty(30) days following delivery by City to
Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been
appropriated by the Fort worth City Council for the purposes set forth in this Agreement.
11.12. Captions
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 shall survive expiration or earlier
termination of this Agreement.
1 1.14 Certified MwBE
If applicable, Artist is encouraged to make their 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.
11.1 S Survival Provision
The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7 (Warranties of
Title and Copyright), S (Artist as an Independent Contractor), and 9 (Indemnification) shall survive the
termination or 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.
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
14 of 20
11.1 . Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this
Agreement.
ARTICLE 12
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery
or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail,
return receipt requested,postage prepaid,as follows:
1. CITY OF FORT WORTH: Assistant City Manager
City Manager's Office
City of Fort Worth
10�00 Throckmorton Street,Third Floor
Fort Worth,Texas 76102
Copies to.- City Attorney
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street,Third Floor
Fort Worth,Texas 76102
Martha Peters,Vice President of Public Art
Arts Council of Fort Worth&Tarrant County
1300 Gendy Street
Fort Worth,Texas 76107
2. ARTIST Jim Hirschfield
312 Ridgecrest Drive
Chapel Hill,North Carolina, 27514
IN WITNESS HEREOF, the Parties hereto have executed this Agreement to be effective as of
the Effective Date.
CITY OF FORT WORTH JIM HIRSCHFIELD AND
SONYA ISHII,LLC
by: b
Y11114
Fernando Costa Jh 'Hirschfield
Assistant City Manager Member
Date: Date:
FFICIL,, RECORD
RON
O A
Agreement with Jim Hirschfield and Sonya Ishiii,LLC,for Preliminary Design of Public Artwork for East Rosed I ed 7 11, ir
% ECRE"Th,r�,'tlf
15 of 20
O ,TFI 1C, NIM1X
w
APPROVED AS TO FORM
AND LEGALITY:
Tyler I a h.
Assistan ' ity Attorney
otoo 2;0
00
CP
ATT B
Mar
Kayser 0
0
City Secretary
Contract Authorization.- No M&C Rc nirc+
1
i
i
I
J
'f�9Yl%'ti&YN'77kW,7z�id�7'7G7DA�.'WTI:I'(4tl173WGS IU7%1»Yr"ItixdUl�oril lU�ti;,m'S.":"YIYRUIWII11 liw!YU7dAWYWV°UUUtiNb UUYWyVlI Yl�Y61dUW�MIUIIUmWJ�tlfil7��l¢U"n
I
111 FFICIAL RECORD
CITY SE;o, W VAT it
�1rxU���Y��"� 'I� r<,x ,,,,,FYI TX�7�Ifl� � i{Gl{ rl/'"''C ;
�rw"Wtu;%dlc,w�Ww.un.,"a.%�w+r,:Yew.u�',�WW"'Yl J�FU'1�u,�'aauuusWUrit�i'f�rF'rroraua?WWYtwAaur,NrrulrtY�YldurudtlrrrWdrrWti roe/f4u�!rxrlVWUPpYW'u1XU:tiiCa.�"tW!61ruJ,I7uU�7w6YI7U�
Agreement with Jinn Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for Fast Rosedale 287-Miller
16 of 20
f
1
Exhibit A
Site
Ms:a N'
ain=i'
..........
.ai
i
1i
y II
...../`^, /..„Y..�✓h .�`".•..l-� �. � .....✓ter.�........:.�...� 5,,.
rM
31
oY' G'l-..fiY� .'r.`,�Y:'.. l:..r..., rA �..J> ...,•.:..'�;s>
n / "T
�*- ME
'Y'�•^w��"wG�.
:C
Location of future roundabout at Mitchell and East Rosedale
.:.:.. ....
^
M
>r ,
w
fM.
r
.✓..�..,✓^`��.• ro�'"•=✓�,s�`?x-N'. •�„ip, �'+w"'' ..�.°,y,„.�"ire✓;,::'%:�°?T;.�:�..., C'..
N. ..r � �`,"M�j.�!���i�,'^^�^a.,,�'"r`J III" �. ��`�.a�,iro"'r^='i �`a•"r�✓�.
:,r f.nia` %wµ..��.,,,.-��ya' ^�w✓tarN:�"mil."��.wM✓""✓..=w�T".w^'Y^✓/'�..r`.
;rte
r aN
n
.�,;r ,�:w�"' Kati-%"'rn`�� r'w�,✓f�.� �✓�.;..
....r..... .-"•'.mow..:.:=...`.. -..'.�i'° ,�.•;. •�i�,`.'=�;,
„.
y r
�v
Engineer's rendering of future roundabout(with landscaping depicted as a place holder
for the artwork)
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
17 of 20
Exhibit B
Implementation Budget
:......:....................................................
....... . .................. .............BL
...........:...:::::'::::::::::::':.::::::::::::.::::.::..:::....:..::.:::.:.:::'.:.:..:..::::.:::...:::::::::.:.:.'...:.::.::..:.:...::.':.'.:.'::::.:::::.:::::.:::...':::..:::::::.::.'::::.::...:.:.:.::'::::::..::::::.::::::::::..::::.::':::.:.:..:i:':..:..:.'.:::::::�.:..'..::::::::::.:.'.::'::..::.:..:.:..'.'.:.'::::::::'.:::::'::::.::..:..:':::':'.�: .'.' ":'.' :::'::.::.::.:.::.:'::::.::': ::.:::::.::::::::..::.:'.: ::.......:...'..
.:.
P se ornp ete thrs.ft lid attach slgfted r cer or titn a complete �h per unit
C ijh IUrr sums frr alb items desgnat:'dh an�stesl *.Dost ir;�reasrs mist
..
spy+ es :a a
ARTIST'S FEE(20%)
TRAVEL
(For artists lkho lire more than 50 miles from Fort Worth)
Airfare
Car Rental
Per Diern Expenses at per day
Mileage at per mile
INSURANCE
Auto/Aired Vehicle Liability
General Liability for Artist f Subcontractors
orker's dip.I Employer's Liability
Other,as applicable
ADMINISTRATIVE EXPENSES
Phone/Fa.x
Delivery/Shipping(for correspondence,samples,models,dra*ngs etc)
Reprographic Service
Supplies
PROFESSIONAL CONSULTANT FEES
(1f applicable,draveing must I)e signed and sealed by a professional registered to practice
in the State of Texas)
Architect*
Structural Engineer*
Electrical Engineer*
Conservator*
Photographer{for documentation of completed%wrkr
Other*
MATERIAL
(Please attach a complete list of materials.Itemize all anticipated aspects and
components with per unit cast estimates)
Materials*Total
FABRICATION COSTS
(Include and itemize all portions of subcontracted work and vv?rk to be completed by
artist.)
Artist's Labor __hours at per hour)Total
Subcontracted Labor`(Total)
Facility/Equipment Rental(used exclusively for this project)related to fabrication
SITE PREPARATION
(Do not include costs covered by FWPA,City of Fort Worth or others)
Test Drilling`
Removal*
Landscapi ngll rrigation*
Electrical Modifications*
Water Work/Mechanical Devices
Other*
(Pnvi=pd Mau 20111
Agreement with Jim Hirschfeld and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
18 of 20
5;:
TRANSPORTATION
Materials to Fabrication Site*
Finished Work to Installation Site*
Other"
BASEMOUNTINO
Base
Mounting Crevices and Components
FoundationdFooting
Other
INSTALLATION COSTS
(Costs must include allowance for after hours installation,if applicable.Please attach a
complete list of equipment and individual estimates with this form)
Subcontracted Lahr*
Scaffolding*
Equipment Rental related to installation*
Off-duty Police./Security*
Traffic Barriers*
Storage Facility Rental*
City Permits
Display Devices
Fireproofing*
Site Restoration*
Other*
LIGHTING
Designers*
Fixtures*
Bulls*
Site Preparation*
Installation*
GRAND TOTAL.
Please make any necessary notes here;
Prepared By:
Date:
(Revised May 20 f i)
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
19 of 20
Exhibit C
Sales Tax Exemption
TEXA, -0;341' -1-1 ON
IFICATE OF F.X .,MP
.................
I claiifi an exemlitioii from jwi vvn!01'Nilleti and Use taWS f0f(lie,J)LIT'Chll.-St!(If to-KIINQ jji~jjj-,dvscrib�ed
Ivlow',or on ffit,attach-od order or invoice..,
Msenption of Items(tw an atfached order or Involicevro Be Nfehased-
I claim th's exctllpfion.for the following rcas4(im,
Nameof Exempt 0rganizatim: CITY OF FORT WOW-141�"TEXAS
TF4XAS SALES AND USE TAX DER MITNUMBER 1-75-6000528-6
Projed for whic.b inamialsantl supl)[ieg are ptirchlised,
I undew-and flint I will be liable for payment of sales tax,Miich may beet-tine(kite RIr failure,to Lomply
%vith the provision
I -s oft he,state,city',m&or mctropolit-an transit cautilority.saIcs ailki Ilse tax laws and
comptruller rulesrepardin vi pt purclavqc4. LA'abibly fiv(lie I-ax will b�e determinv. y tine Pricy a
g ex ii . 1h th i--pid
tai'the taxable itenis purchascd or the fali:market rental value for the.txliod ol.time used-
I understand that it isa ii-iisdeineanor to 9"Vc 1m,.-,,XcMi)ti0n certificate-to the seller for taxable items which
I UOW,,at the tiI
rne of tile purch,15o,%Vill b4�used in a mminer othef t1jall thkal expmscd In this cctiffiewe
and,upoll convielion.may be fined up to.5'5500 W offense..
Bein a Q n
qLc
I I VIA-E 11—C 11 IT—IS-1 11111511—UC—t I—I
llurch-awr: CITY OF FORT WORT11,TEXAS
Street Addrc,;,-,;-1 1000 T111ROCKMOMUN S'I'IZ.EET
State.Zip Ctide.FORT,WORM,TEXAS 76102
Sig
ri HeTe D,,f e: Juflc 11,1009 1'111311e 817-`914517
'L, - .1 -
Q- - ...........
'I"his certl fi ca t c dovs.j Wt req thre a number to tv v0lid, Sales and use tax"c:-wiliption ntimbers, or"tax
excall,ifs.nUM[WrS(10 110t.(�XiSt,
'1411,5 Celli fI catc sho u I d be fu 1-111'sh ed to the,supplier',D1 i rivi-.Senld the ct-1111 co fir v cite t v fl)e
COMPIA)Iler of f-lublfe Accomits,
Agreement with Jim Hirschfield and Sonya Ishii,LLC,for Preliminary Design of Public Artwork for East Rosedale 287-Miller
20 of 2❑