HomeMy WebLinkAboutContract 45753 t
CITY SECRUARY
awma W.
AGREEMENT BETWEENTHE CITY OF FORT WORTH AND
ERIC ELEY STUDIO, LLC FOR FINAL DESIGN OF PUBLIC ART
FOR ROSEN A
This Agreement is entered into this day ofn 2014 by and between the City
of Fort Worth, a home-rule municipal corporation of the ;state 7f Texas, acting by and through its duly
authorized Assistant City Manager, and Eric Eley Studio, LLC, acting by and through it duly authorized
member Eric Eley. 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 Public Art
project manager.
WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of
Ordinances, the Fort Worth Public Art Program's goals are to create an enhanced visual environment for
Fort 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, the Fort Worth Public Art Program is implementing a community-nominated public
art initiative known as "Community 1D: Public Art in Neighborhoods" ("CID") per the recommendations
and guidelines in the Long-Lange Public Art Plan for the Water Fund (adopted by the City Council on
May 9, 2006), and as set forth in the Fort Worth Public Art Master Plan (adopted by City Council in
2003);
WHEREAS, public art funds for the Project have been allocated from the Public Art Fund, and
the Project was included in the Fiscal Year 2014 Annual Work Plan and Budget, adopted by the Fort
Worth City Council on November 12, 2013 (M&C C-26557) as part of the City's agreement with the
Contract Manager for administration of the public art program;
WHEREAS, on June 13, 2011, the Fort Worth Art Commission ("FWAC") approved a review
panel's recommendation to award a CID project to the North Beverly Hills Neighborhood Association at
its nominated site, Rosen Park, which is located at 2300 McCandless Street, Fort Worth, Texas 76106;
WHEREAS, Eric Eley was selected through a proposal process outlined in the Fort Worth Public
Art Master Plan and conducted by the Contract Manager with oversight of the FWAC;
WHEREAS, on March 17, 2014, the FWAC recommended that Eric Eley be retained to develop a
Final Design based upon the Preliminary Design of public artwork to be incorporated into the Site; and
WHEREAS, City and Artist wish to set out the terns and conditions under which said Work shall
be designed to promote the integrity of Artist's ideas and statements as represented by the Work.
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NOW, 11JEREFORE, 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:
AR'lj(',L E I
DEFINITIONS
As used in this Agreement,the following terms shall have the meanings as set forth below-
1,1. Agreement Means and includes this Agrecirwrit between the City and Eric Eley for
Final Design and Commission of public art for the Site.
1.2. Artist - Means and includes Eric Eley Studio, [..LC.
1.3. Artwork Design -Means and includes both the Preliminary L)esigil and Final
Design of the Work,which are defined in I.1a. and 1.3.b.below,
1.3.a. Preliminary Design - Means all preliminary drawings, sketches, prototypes,
marquettes, models, naffative descriptions, budget estimates, and the like that were
created by Eric Eley in connection with Fort Worth City Secretary Contract No. 44698
between Eric Eley and City for the Work, including, but not limited to, the design
concept attached hereto as F"xhibit"A"and incorporated herein for all purposes.
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, nia(luettes, 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/or its officers,directors,and employees.
1.5. City Means and includes the City of Fort Worth,Texas.
1.6. Community Group Means and includes the North Beverly Hills Neighborhood
Association and its representatives.
1.7. Effective Date Means and includes the date represented in the first paragraph of this
Agreement,which shall be the official date of execution of this Agreement.
1.8. Final 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.
1.9 Parties - Means and includes City and Artist.
1.10. Project - Means and includes the capital irnprovenient/public art development
undertaking of City for which Artist's services are to be provided pursuant to this Agreement,
Agreement ror Final Design Public Artwork with Eric Eley Studio,LLC 2 oF20
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1.1 1. Site— Means and includes Rosen Park located at 2200 McCandless Street, in Fort Worth,
Texas, which is more particularly described on Exhibit "13," attached hereto and incorporated herein by
reference for all purposes.
1.12. Work— Means and includes the finished object(s) of art and design that are the subject of
this Agreement, or any intermediary stage of completion of such work.
ARTICLE 2
SCOPE OF SERVICES AND DFLIVFRABLFS
2.1. Artist Selection.
City and Artist acknowledge that Artist's Preliminary Design was reviewed and approved by the FWAC
on March 17, 2014, and is the basis for executing this Agreement with Artist.
2.2. Scope of Services.
a. Artist shall perform all services and will furnish all supplies, materials, and equipment as
necessary for developing a Final Design of the Work and for providing the Final Design
Deliverables. Services shall be performed in a professional manner and in strict 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 acceptance by City as set forth in this Agreement.
C. Artist shall develop a Final Design that incorporates all six elements of the Preliminary Design
with the understanding that funding restrictions may cause a reduction in the total number of
elements to be commissioned by the City.
d. The location at the Site in which the Work shall be installed shall be mutually agreed upon by
City and Artist.
e. Artist, upon request of Contract Manager, shall attend meetings with appropriate City staff for
purposes of risk assessment, safety review, sighting of the work, and permitting.
f. Artist shall meet and coordinate with the Director of the City's Parks and Community Services
Department or that person's designee ("Director") for proper integration of the Work into the Site
and into any construction documents,as applicable.
g. 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.
h. Artist shall present the Final Design to the appropriate City committee, City staff, Community
Group and other City boards or commissions as appropriate, for input and to the FWAC for
approval at dates and times mutually agreed upon.
2.3 City Assistance.
Agreement for Final Design Public Artwork with liric Fley Studio,LLC 3 of 20
Upon request by Artist, City shall promptly furnish all infortnation 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.
14 Fin.q si n Deliverables
a. Within three (3) months after the Effective Date, Artist shall provide services and all supplies,
materials, and equipment necessary to provide certain deliverables, as set forth in this Article 204
to City for approvaL Final Design [)cliverables shall consist of the following-.
i, Detailed design illustrations of the Work for the Site, in a high resolution digital format, such
as JPEG or TIF files, showing the proposed Work from two vantage points with at least one
illustration showing the Work's size and placement in relation to the Site.
ii. A final written narrative of Work,describing the following: (1)the Final Design concepts and
tirnChDC for completion; (2) proposed materials, fabrication, and installation methods for all
elements of the Work, including information regarding Artist's subcontractor(s), if any, for
the Work; (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
or activity to be conducted by Artist at a time mutually agreed upon by Parties,
iii. Comprehensive working drawings, detailing the means of installing all elements of Work on
the Site,together with other such graphic material to permit City to carry out structural design
review, Professional Liability Insurance is required in all circumstances for on-site artwork-
requiring engineering and/or architectural services. City will conduct a review of structural
design and other related graphic material prior to installation of the Work, Upon City's
request, drawings must be signed and stamped by an engineer and/or architect licensed to
work in the State of Texas. Artist will provide the Contract Manager a certificate of insurance
for each licensed prof ssionaf and provide City with a 30-day notice of cancellation of any
policy required hereunder,
iv. A detailed budget, on the budget form attached hereto as Exhibit "C", for installation of all
elements of the or as set forth in the Preliminary Design and a separate budget for
installation of four clements of the Work. The budgets should include all costs for materials,
labor, flibrication, delivery, installation, insurance, transportation, reinaining Artist's fee, and
all other associated costs with the Work.The detailed budgets will be for implementation of
the Work through. a possible artwork commission contract with City, which contract may be
subject to the approval of the Fort Worth City Council.
.2-5.1 -"Final
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a. Upon completion of the Final Design Deliverables, Artist shall present the Final Design to the
FWAC for input at a regularly scheduled FWAC meeting.
b. After presentation to the FWAC, Artist shall meet with the designated Community Croup, City
staff, and other City boards or commissions, as appropriate, to present the Final Design, at a date
and time mutually agreed upon, for input.
C. Artist shall then present the Final Design to the FWAC for approval at a regularly schedule
FWAC meeting.
d. City shall notify Artist of its approval, or disapproval, of the Final Design within thirty (30)
business days of Artists presentation to the FWAC.
e. If City requires any revisions to the Final Design, then City shall inform Artist of each. City may
require Artist to make such revisions to the Final Design as City deems necessary in its sole
discretion and/or for the Work to comply with applicable statutes, ordinances, or regulations of
any governmental regulatory agency having jurisdiction over the Site for reasons of safety and
securi ty.
f Artist shall have thirty (30) calendar days from the date City informed Artist of the revision(s) to
present the revised Final Design in conformance with City's requirements.
g. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will
be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If
the Parties desire not to continue with the resubmission process, then this Agreement will
automatically terminate, with payment to the Artist per the payment schedule in Article 3 up
through the date of tennination. (See Article 4.4.d)
h. Upon City approval of the Final Design, any revisions made to a City-approved Final Design
shall become part of the Final Design. Artist shall incorporate any City-approved revisions into
the final design in conformance with City's requirements. Artist shall provide the Final Design
presentation materials to the Contract Manager to become part of the City's Public Art archive.
These documents, models,and/or drawings will be retained for archival and exhibition purposes.
i. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Final Design is
accepted by City and funding is appropriated by the Fort Worth City Council, negotiations for
fabrication, delivery, and installation of the Work shall commence, which shall become part of
the deliverable under any anticipated artwork commission contract.
ARTICLE 3
COMPENSATION AND PAYMENT SOIEDULF,
3.1. Compensation.
Total compensation to Artist under the Agreement shall be in an not to exceed 'I dV(3 'i IOUSAND
Agreement for Pinal Design Public Artwork with Eric Fley Studio,LLC 5 of20
SEVEN HUNDRED FIFTY 00L RS..ANO AQ Cie, which shall constitute full
contINnsation for any and all costs associated with this Agreentent, including, but not limited to,
engineering and consulting fees, and services perl'ormed and materials fijri)ished by Artist under this
Agreement. Artist and City may amend this Agrecirtent to allow for additional payment if additional
services are required.
3. 1` Ilk at, hg idea
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. THREE HUNDRED SEVENTY-FIVE DOLLARS AND No LE' upon
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execution of this Agreement.
ii. FIVE HUNDRED DOLLARS AND NO CENTS
(10.01) within thirty (30) days after
Artist subri-ifts Final Design Deliverables, as required in Article 2.4. of this Agreement, and
makes a presentation of the Final Design to FWA.C.
iii. THREE HUNDRED SEVENTY41VE DOUJ,ARS AND NO CE.-NJS 175 Q` within
thirty(30)calendar days after City's approval of the Final Design.
iv. DOLLARS AND NO CENTS
jj1,500.00 ,ering and consulting fees in order to fulfill the terms of this Agreement.
I for engine
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 set-vices attached thereto.
33, Sales"faxes,
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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," attached hereto and
made apart hereof for all purposes as IE"ixhibit"M for use by Artist in the fulfillment of this Agreement,
14. Artist's F`m) p
Artist shall be responsible for the payments of all expenses incurred during the performance of this
Agreement, ifIC111ding, but not /united to, set-vices, materials, mailing/shipping charges and insurance on
subrnissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants,
and/or employees necessary for the proper perforinance of the services required under this Agreement.
ARTIC1,E 4
TERM ANDTERMINATION
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4.1. '"fern
This Agreement shall be in effect from the Uffective Date and,unless terminated earlier pursuant to such
provisions in this Agreement,shall extend until final paynient to Artist by City.
Appeement for Firmfl[Design PuMc Artwork width Edc Eley Stu6o, 6 ol'20
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 detenninations with respect to this perfornance of this Agreement.
4.3. Termination for Cause
If either party to this Agreement shall fail to fulfill their obligations in accordance with the terns of this
Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this
Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in
accordance with the dispute resolution process set forth in Article 5. If the Parties cannot resolve the
dispute(s), then the disputing party shall thereupon have the right to tenninate 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 tennination.
b. If the 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 tennination. If City chooses to pay Artist, then all work product produced by
Artist under this Agreement, including, but not limited to, finished and unfinished drawings,
sketches, photographs, models, and designs, up to the effective date of termination shall become
property of City.
d. If termination is by mutual agreement of the Parties as set forth in Article 2.5, then City shall pay
Artist per the payment schedule in Article 3 up through the date of termination. City shall have
Agreement For Final Design Public Artwork with Gric Fley Studio,LLC 7 oF20
the right to possession and transfer of all work product produced by Artist under this Agreement,
iticluding, but not litnited to, Finished and unfinished drawings, sketches, photographs, models,
and designs,up to the effective date of tennination
4.5 lij Aq4y cI hr-fist
a. In the event that Artist beconics incapable, legally or otherwise, of'perfornfing 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 pnor 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 eftective date of teiTnination
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 coutplete 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 terniination or expiration of this Agreenient,
ARTICLE 5
(NSPUTE RESOLUTION
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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 mectings, 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 Rernedies Code and Chapter 2009 of the Texas
Government Code, then in effect. Request for mediation shall be in writing, and shall request that
the inediation commence not less than fifteen (15) or more than fixty-five (45) calendar days
following the to of request,except upon Agreemew of tire 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 161lowing the date of the request for mediation, then all the conditions
precedent in this article shall be deerned to have occurred. The Parties shall share the mediator's fee
Agrevinent for FinaN Design Pubhc Artwork wfth F Eley Studio,V. 8 of 20
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)
AR,rlCLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 General
a. Upon payment in full to Artist or pursuant to the applicable termination provision of this
Agreement, the Artwork Design, Work, and all other work product under this Agreement shall
become the property of City, without restriction on future use, except as provided below. Artist
shall retain copyright and other intellectual property rights in and to the Artwork Design and
Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty
free, and irrevocable license to graphically depict or display the Artwork Design and Work for
any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction
or display of the Artwork Design or Work intended to promote or benefit City, its public services
or its public purposes, regardless of whether or not a fee is charged to the public, or whether
revenue is otherwise received by City, shall be deemed a non-commercial purpose.
b. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make
any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist
grant permission to others to do so except with the express written pennission of City. However,
nothing herein shall prevent Artist from creating future artworks in Artist's manner and style of
artistic expression.
C. Artist reserves every right available under the Federal Copyright Act to control the making and
dissemination of copies or reproductions of the Artwork Design and 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 Work and accompanying materials for
any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a
copyright notice substantially in the following form: "O date, Artist's name."
d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design
and/or Work for marketing and promotional purposes in connection with the Artist's business.
e. City is not responsible for any third-party infringement of Artist's copyright and not responsible
for protecting the intellectual property rights of Artist
Agreement for Final Design Public Artwork with Eric Eley Studio,l.L(' 9 of 20
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.
ARDCLE 7
WARRA�
MS 0FTlTl,F AND COPY RU(if IT
a. Artist represents and wan-ants that:
i. Artwork Design and Work shall be the original product of the Artist's sole creative efforts.
ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any
copyright or the rights of any person,
iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Artwork Design or Work or any copyright related thereto that may affect or impair the rights
granted pursuant to this Agreement.
iv. Artwork Design and Work(or duplicate thereof)have not been accepted for sale elsewhere.
V. Artist has the full power to enter into and perf6rin this Agreement and to make the grant of
rights contained in this Agreement,
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,
ARTIC1,148
ARTIs'r AS INI,)EIIFNI")].,,N'I'CON,rR.A(."f'Oit
Artist shall perf6rin 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.
ARTICLE 9
INDEMNIFICATION
9,L General Indemnity
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a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY IND1i,MNIFY, HOLD
IIARMLESS, AND DEXEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST
ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF
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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 I.IMITE,D TO, TIIOSE, 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 'r0, 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 ACTS, ERRORS, OR OISSIONS OF ARTIST AND/OR ARTIST'S
SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS,
EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN
CONNECTION WITS[ THE EXECUTION, PERFORMANCE, ATTEMPTED
PERFORMANCE,OR NONPERFORMANCE OF THIS AGREEMENT.
b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss
to persons or property sustained or caused by Artist in connection with or incidental to
performance under this Agreement.
C. Artist shall require all of its subcontractors to include in their subcontracts a release and
indemnity in favor of City in substantially the same form as above.
9.2. Intellectual Property
Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and
any other regulations, including, but not limited to, the assumption of any and all responsibilities for
paying royalties that are due for the use of other third party copyrighted works by Artist. City expressly
assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or
financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of
copyrighted materials by Artist without the appropriate licenses or permission being secured by Artist in
advance. IT IS FURTHER AGREED TIIAT ARTIST SEIALL RELEASE, DEFEND,
INDEMNIFY, AND [[OLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION,
INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE
SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY
REASON OF AN ALLEGED OR ACTUAL COPYRIGtrT 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.
Agreement for Final Design Public Artwork with fait Eley Studio,LLC I I of 20
ARTICLE, 10
EMJAL 01) 11CI'UNITY
a. Artist shall not engage in any unlawful discrimination based on race,creed, color,national origin,
SeK, age, religion, disability, marital status, citizenship status, sexual OlientartiOrl or any other
prohibited criteria in any employirient decisions relating to this Agiveinent, and Artist represents
and warrants that to the extent required by applicable laws, it is an equal opportunity employer
and shall comply with.all applicable laws and regulations in any employment decisions,
b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this
Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be
debarred from further agrectrient%with City.
ART[CLE I I
M I SC ELLAN EQU S
11.1. Coln
..
Artist shall comply with all Federal, state, and local statutes, ordinances, and regulartions applicable to the
perforniance of Artist's services under this Agreement.
1 L2. Dilre A"T
E q111q1Lt
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
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No alteration, change, modification, or arriendinent 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.
11A. Waiver
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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.
1.5 Goverli..J...ng Law and Venue
If any action, whether real or asserled, 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 Assi 'i
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written.consent of the
Agreement for FinA Design Public Artwork with Eric Oey Stu&o,[AX 12 of 20
other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such
prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit
of City and Artist and their respective successors and permitted assigns.
1 1.7. 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 retraining provisions shall not in any way be affected or impaired.
11.9. Force aieure
It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any
obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather;
governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots;
material or labor restrictions; transportation problems; or any other circumstances which are reasonably
beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform
the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the
party so obligated or permitted shall be excused from doing or performing the same during such period of
delay, so that the time period applicable to such design or construction requirement shall be extended for
a period of time equal to the period such party was delayed.
11.10. Contract Construction
The Parties acknowledge that each party and, if it so chooses, its counsel, have reviewed and revised this
Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party must not be employed in the interpretation of this Agreement or any
amendments or exhibits hereto.
l 1.1 1. Fiscal Funding Out
If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to
appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the City may
terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City to
Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been
appropriated by the Fort Worth City Council for the purposes set forth in this Agreement.
11.12. Cations
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a
part of this Agreement.
Agreement for Final Design Public Artwork with Eric IJcy Studio,I,LC 13 of20
13 -KithUg-Audit.
Artist agrees that City will have the right to audit the financial and business records of Artist that relate to
the Work (collectively "[xceords") at any time during the Tenn of this Agreetnent and for three(3) years
thereafter in order to determine compliance with this Agreement. Throughout the Tenn of this
Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at
1000Throckniorton Street, Fort Worth,'I'exas 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
tennination of this Agreement.
11.14, Certified MBEJW B 17-
If applicable, Artist is encouraged to make its best effort to become a certifted Minority Business
Enterprise (MBE,,) or Woman Business Enterprise (W131) firm with a certifying agency whose
certification is accepted by the City under the City's Business Diversity Enterl)rise Ordinance.
1.1.15 Survival Provision
The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7 (Warranties of
Title and Copyright), 8 (Artist as an Independent Contractor), and 9 (Indemnification) shall survive the
termination or expiration of this Agreement.
11,16. Counte arta_a;ind 1�ala tronic S atures
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.
MIT Time Ex tens ions
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 Agreenient shall be in writing and shall be deemed to have been duty 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:
L CITY OF FORT WOIU'H-. Assistant City Manager
City Manager's Office
City of Fort Worth
1000Throckmorton Street,Third Floor
Fort Worth,"Texans"76102
Agreement for FinM Design Pubfic Artwonk with Eric 0ey Studio,LLE 14 of 20
............
Copies to.. City Altorney
Office of the City AtIonicy
City of Fort Worth
I000 Throckmc:rcion Street,Third Floor
Fort Worth,'I'exas 76102
Mailha Peters, Vice President, Public Art
Arts Cmincil of Fort Worth &Tarrant Conlity
1300 Gendy Street
Fort Worth,Texas 76107
2. ARTIST Eric El.ey Studio, LLC
Attn: Eric Eley
631 N Winnetka Avenue
Dallas,Tex as 75208
IN WITNESS H FIR.14"Ol', the Parties hereto have executed this Agreement to be efrective as of the
EffLctive Date.
CITY OF FORT WORTH ERIC ELEY STUDtO, LLC
by:. ........- . ........
Fernando Co by e�sta c I ey
Assistant City Manager Member
APPROVED AST FORM
AND LEGIALITY:
�'.w...........
Ty er F. llac
As it4iy`Attorney
F F0
ot
ATTESTE 13
)
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'TTF je.
00
......................................... ov
Mary J. 44 ,rr 0041
Ity "ect.et '0
City Se reU
C'ontract Authorization:
No M&C 1�gqyired
.............. ...........
OFFICIAI,iiiii,RECORD
CITTSECREURY
T. 'WORTIH, TX11
Agmement for Final Design Public Artwork with Flw F',ley Studio,LIA" .... —11 9-11
Exhibit A; The Preliwatirrttr°y Design
„�>tu� rP,srnn„ Y � iii i�r
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The proposed piece, COMPriMA of two di%ti nct seWptuW seafing compositions
with errbRirng sestirntg islands,is sib..ueted in Rosen Park under the canopy of two
of uts feu a shade tree& Taking !into a° nurnl the parks function as the rerntrep
recreational space for the surrounding undin community aand its confinuing growth,Me Ali,
artwork establishes tail points for gathering and interaction.
inspired by the asmcararurnity M wNch it sii x the work ps a. functional W.�Wpture
constructed born exploded irnterpretatlons of the Gcflden Seefiom the Golden
»ea%on is e malherruatcal proportion that generates a shape that rain be
imfiroll:ella added to or subtirricled from, never loskig its care relalioriship,
Comprised of multiple unique sealtntg and table elements harmed oin defined
laotprurhls, each stands as a b6ghhl geornetric com posilion on the landscape
beckoning vIsators off of line footpath, W,ien oc n„u ied, Me central elements
become vibrant cvnmunal talbIles where neighbors can share firne,chat,watch
soccer games„ and share rrneal,s, "fine orbiting islands suffer wre urhfirr ale
seating for readprnp a book or convenrslnp wifNn a Bernd
, �pllqu4w+°
Ag gireenrie nt for Finai Design U ubilic A rtwolrk with lyric Eltey Studio,[LC 16 of 20
Exhibit B: The Site
Rosen Park, 2300 McCandless Street, Fort Worth, TX 76106
yb w u�
I
y
i
4
A,kwn'eevnennt for Final Lksi n Public A ytna ork with Ffic IMey Studio,LIS' 17 of 20
Exhibit C: Budget Form
,� i / // ✓ i G / i / / �i U/ iiii ✓
ARTIST'S FEE F
TRAVEL
( bw autk l.,a vft On rnme ftn 50 cnnll fMM Fc d WOO)
�MPoI'tvanN'ih?
CM RMdA'
FW Dian EvwAa at ..._....I
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INSURANCE
Autm Ore d VaNde WA MY
•-W • .. firx Aft.II�mnbmaam sTtu�
.. .. _ ......__........._..... �..
ADMINISTRATI'VE EXPENSES
Fsm•x
Cu c (dvml mntl(mre m ww ,Samrndul ,frKO.ft,drawwW 0c)
Repiugraoieftvka
SiLplArms
PROFESSIONAL CONSULTAN CONSULT C FEES
(T k•. ,.ftWft nWS1 lam SiUFW d-Xid seaW-ii by as l' 0essdrum k regi-drurml tau p°acd cre
dw SLAO of"Cmn )
Am0lhict'
truuct Emu mwa t1
Electical E li r*
0
Furs ate dtmmm vj0CUW7 camwlam'Bltmn(A crm i r
ra.,_....m_�_..._...... _..._.....�....................................... .
MATERIALS
(PleAse aftach a a 'te last mat n16aV!lnWs.It?PfN,"N..rta aflarMapated"eHi51DOC19 Mid
abrrn '..n,.c Atli per unit mA t„^s1ka•maa"mt"es)
Wena"V TOW
F' RICATION COSTS
(Nw .du dra 2nd ftevdze aM lwmmatiaa"z of subamitractedAK0 and u t to b:e conllAevscl V
ar".)
Subc,cmtrmmcI&I @ almr"
F tai )1E-almulFs t Rerft du ,W exclusively for ktntaa rapa d'd r.. eat W Pjbrkaaabcxa
SITE PREPARNTION
(Do wr t Gael cn at's comed by F"MIA,('ty"iW Fat'WrAh m'am maPllW'.S)
Two Il duff nxr
............
_, .... ..�__.
Retrucbl,
..................... _........ _...
wtian •.mmladv",4hrk)a#x maa
Elertrlcjl Fd6oMaAmsa.. _,.,._....... ......_..........._r................_....... __.............. ....._._........
Water t umFa'MW;ba 0catl D(Mcm
r
(RovAnd May AH F)
Agma;unent dear H nal Design Public Artwork with Eric Eley Studio,LL(.' 18 of 20
TRANSPOECTATION
Wertais Vj Fatx1rMm(vi Site'
Fovished Wcoh to Wita&Wm&te'
BASPINOUNTING
Bawl
11AXION4P DpCI�'.Vw c tumor"If'"'Wits
F'owMbjiVFfrAng--0---- ----
Ofto
INSTALLATION COSTS
(CxAia vyKnit bcku�-Aowjnce for 2ftq 1XXON arwMabmi,it 2WAG'a* P.Wase A-Much a
cmtVk.,M-IM of equipomV and w0vidtK4 eshrnMes vAth ML,,,Rmn)
&dxwA*xtW aW
scatuctno.
FqxWw*n1 R*nmtal reiatpd to m",ftnl
Off-"PLAc6smaity,
TFaffic Bmms*
ikxio'Facgly Rfx*W*
C,fty Fle"U",
ompbly 06"ces
Me W--ftabon'
Mar
LIGHTING
L)eroqv3w
Sda MWairafioW
GRAND TOTAJL
Please make any rwlessafy not. here:
Prepared Or.
�ftV13W1WJ(Ott 1J
Agreement for Final Design Pubfic Artwork wfth Fric Eley Studio,LB.C 19 of 20
Exhibit D: Sales Tax Exemption
jLN, A5&LRjjF1CATF0F, IF 'NIPTION
JJL_
I clairn an cxcnijaion h=payment of rates and tow taxes 1'" 'the punbancamp taxible items des ail hed
briclia,or tmi l stgag.,IwA imt1a,m invoke,
-............... .......... ....... ........ ................
Dcmciipcion ofitcmss to an sawlKA cffther ow biwice)'J"o Bic PtmvtW*%L
............ ....... .............. ..................... ...........—.. .... .........
I clailm 06's exeg"ption fat the fi-Alowing MMOM
Nune of Bc4npt Orpnuzxkm; CITY OF FORT WORTIJ,TEXAS
TEXAS SALES AND USE TAX PERMIT NUMBER 1-75-0052"
hojecl br ms hi&awiti-wals,vvJ stopplies are pwchamd�
............... ............ ..........
I amen micramd dva I will be liable,for payinemt of gal es tow.,whidi may beccamic due fh)r failakir,to aimply
with the,pumisimis ofibe,irustc city,aniNN marepobtan IrM&aufficivity sales wid Use 18A laws Aud
ctmitt pwpfltT rules rqwding exempt puMiases, Liabiliq for the lax will he&w"ninw ui OKI price paid
fim,tlw moble itnin purc-hascd or the fair market rmtdi valeta c fix,dw,paicild of tisame uffinj.
N widerstad dw it is a misdemeamw to jove an excunphon catificale 60 the ;flrz 14 taxable itam Which
I know.1A 0110 6MC Of Tht,PWOKWK!,Will be wpxl in a miwukLr other thain thas expoased in elks ccnificalie,
mW,upmi cmviction.imay lic fliv.d up to S500 pa offas
Adw diavuwipaa!"fi�y
Purcimer, CITY Of FORT WORTH,TEXAS
Street Adchru: 1000 THROCKMORTON STREET
Cily.Statc.Zip FOR,'F,WORTH.TEXAS 76102
Sign ilcr- 111"Iell2009 11bille" 817-39214517
Sales iaai arose oax",cmanrokoi numbwas"or'tax
exemrA"nuinbcn¬ exisc
'Mis crtrfificate s&vld kw fWniAnd to OicsolViier Do wN scW dic cAnnydeW owificavre to ik
Cbmph'uhr of Pubmliv Accounts
Agweernent lbr Hnal Desipti Public Artwork with Erlc 1!ky ShA&o'LLC 219 of 20