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Contract 42148
x t 1 x CITY SECRETARY RA AGREEMENT FOR FINAL DESIGN OF PUBLIC AR N0. off_ WORK BRENNAN STREET AND DEWEY AVENUE BRI GESOR THE BETWEEN THE CITY OF FORT WORTH AND LETICIA HUERTA STUDIO, L.L.C. This AGREEMENT is entered into this j day of 2011, by and between the CITY OF FORT WORTH, a home-rule municip corporation, of the State of Texas acting by and through Fernando Costa, its duly authorized Assistant City Manager, and LETICIA HUERTA STUDIO, L.L.C., of 9630 Requa Road, Helotes, TX, 78023. The 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, City has undertaken a major storm water enhancement project along the Lebow Channel called the Lower Lebow Channel Watershed Project; WHEREAS, as part of the Project, City is constructing two bridges at the following locations: (1) the intersection of Dewey Street and Decatur Street ("Dewey Bridge"), and 2 on Brennan Avenue in Trail Drivers Park (`Brennan Bridge"); WHEREAS, allocated in the 2004 Capital Improvement Program, Proposition One, are funds for artist fees and costs related to the design and production of artwork for the Project; WHEREAS, Artist was selected by City through a selection process conducted by the Contract Manager with oversih t OFrt Worth Art Commission (the "FWAC") to develop a FICIA . COkEE CITY SECRETARY FT. WORTH, TX Page I of 28 uU-12-1 11 A 1 N master plan for public art and design enhancement recommendations for the Project ("Master Plan"); WHEREAS, Artist entered into a commission contract with City to complete a public artwork on the Northeast 28th Street Bridge (City Secretary Contract No. 38686), which is part of the Master Plan; WHEREAS, preliminary, integral design concepts for the Dewey and Brennan Bridges are also part of the Master Plan; WHEREAS, on December 8, 2008, the FWAC reviewed and approved the Master Plan which were included in the FY 2011 Fort Worth Public Art Annual Work Plan approved by City Council on October 19, 2010 (M&C C-24554); WHEREAS, the FWAC has recommended that Artist be retained to develop final designs based on the Master Plan for public artwork to be incorporated into the Dewey and Brennan Bridges and that achieves visual continuity with the Northeast 28th Street Bridge; WHEREAS, City and Artist wish to set out the terms and conditions for the Artist's participation in the Project, including consultation with the City's project consultant, Teague Nall and Perkins. 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: ART- DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: Page 2 of 28 I \ - 1.1. Agreement—Means and includes this agreement between the City of Fort Worth and Leticia Huerta Studio, L.L.C., for Final Designs of Public Art for the Sites. 1.2. Artist — Means and includes Leticia Huerta Studio, L.L.C., and/or its members, officers, managers, proprietors, directors, employees, representatives, agents, subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders, administrators, subartist, contractors, and related companies. 1.3. Artwork Designs — Means and includes both the Preliminary Designs and Final Designs of the Works, which are defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Designs — 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 Works, including, but not limited to, the design concepts attached hereto as Exhibit `B" which shall be incorporated herein for all purposes. 1.3.b. Final Designs —Means the Artist's final, proposed designs of the Works for the Sites, which are based upon the City-approved Preliminary Designs and includes, but are 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 Works and shall include Artist's specifications for fabrication and installation of the Works. 1.4. Contract Manager— Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and/or its officers, directors, employees, agents, subsidiary organizations, parent organizations, successor corporations, assigns, predecessors, stockholders, administrators, and related companies. 1.5. City — Means and includes the City of Fort Worth and includes City's officers, representatives, agents, servants, and employees. 1.6. 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. 1.7. Final Designs Deliverables — Means and includes those items set forth in Article 2.5 of this Agreement that are required for City's review and approval. Page 3 of 28 1.8. Parties—Means and includes City and Artist. 1.9. Project — Means and includes the City for a major storm water enhancement project along the Lebow Channel called the Lower Lebow Channel Watershed Project in Fort Worth, Texas. 1.10. Project Consultant — Means and includes the design firm/professional(s) hired by City to design the Site. 1.11. Sites — Means and includes the bridge on Brennan Avenue in Trail Drivers Park in Fort Worth, Texas, and the bridge at the intersection of Dewey Street and Decatur Street in Fort Worth, Texas, which are more particularly described on Exhibit "A," attached hereto and incorporated herein by reference for all purposes. 1.12. Works — Means and includes the finished objects of art and design that are the subject of this Agreement, or any intermediary stage of completion of such works. ART— SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that Artist's Preliminary Designs as included in the Master Plan were reviewed and approved by the FWAC on December 8, 2008, and is the basis for executing this final designs services contract with Artist. 2.2. Scope of Services. a. Artist, in consultation with the Project Consultant, shall determine the artistic expression, scope, design, color, size, material, and texture of the Works, subject to review and acceptance by City as set forth in this Agreement. b. Artist shall perform all services and will furnish all supplies and materials as necessary for developing the Final Designs for the Works at the Sites. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. C. Artist may propose the reuse of formliners used in Artist's Northeast 28th Street Bridge project in the Final Designs. d. Artist shall provide the Project manager with information on the media and installation method for the art for the Dewey Bridge by the end of August, 2011, so that Project Consultant Page 4 of 28 may incorporate the information into the Dewey Bridge design during the design development phase. e. Artist shall meet and coordinate with the Project Consultant to ensure proper integration of the Works into the Sites and into the construction documents and to recommend lighting for the Works, as appropriate. f. Upon request of City, Artist shall consult with a qualified art conservator and shall provide his written maintenance recommendations for the Works from said conservator to the Contract Manager. g. Artist shall present the Final Designs to the designated community stakeholder's group and City officials for input and to the FWAC for review and approval at dates and times mutually agreed upon. Artist may present the Final Designs for Dewey Bridge and Brennan Bridge at separate meetings, if necessary. 2.3. Implementation Budget Total Artist shall develop Final Designs that are financially feasible relative to the budget for implementation. It is understood that the total budget for implementation of the Final Designs is estimated at EIGHTY-FIVE THOUSAND SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($85,750.00). which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, travel, remaining Artist's fee (less Artist's fees and engineering fees paid under this Agreement), and all other associated costs for the Works. Artist shall provide a detailed budget, on the budget form attached hereto as Exhibit "C," for implementation of the Works through a possible artwork commission contract(s) with City, which contract(s) is subject to the approval of the Fort Worth City Council. 2.4. 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 Sites, if available. 2.5. Final Designs Deliverables Within three (3) months after the execution of this Agreement, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Section 2.5.a.-d. to City for approval. Final Designs Deliverables shall consist of the following: Page 5 of 28 I r r a. Artist shall provide detailed, design illustrations of the Works for the Sites, which shall be at least 20" x 30" and mounted on foam core and/or in a high resolution digital format, such as JPEG or TIF files. b• Artist shall provide a final written narrative for the Works, describing the following: (1) Final Designs concepts and timelines for completion; (2) Proposed materials, fabrication, and installation methods, including whether the Works will be executed by the City's general contractor or by Artist; (3) Maintenance requirements for all elements of the Works as dictated by Artist along with cost estimates for annual maintenance; and (4) Proposed public education program to be conducted by Artist during the commission phase of the project. C. Artist shall provide comprehensive working drawings, detailing the means of installing all elements of the Works on the Sites, together with other such graphic material as may be requested by City to permit City to carry out structural design review. Upon the 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, and Artist will obtain and furnish to the 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 section for any use other than the Final Designs. d• Artist shall provide a final budget for the Works with written estimates attached for supplies and services to be provided by Artist, by Artist's contractor, or by others, including any remainder of Artist's fee, in an amount not to exceed $85,750. 2.6_Design Review. a• Upon completion of the Final Designs Deliverables, Artist shall meet with the appropriate City Committee, City staff, the City's Project Consultant, and other City boards or commissions, as appropriate, to present the Final Designs, at dates and times mutually agreed upon for input. Artist may present the Final Designs for Dewey Bridge and Brennan Bridge at separate meetings, if necessary. Page 6 of 28 b. Artist shall present the Final Designs to the FWAC for approval at one or more regularly scheduled meetings. Artist may present the Final Designs for Dewey Bridge and Brennan Bridge at separate regularly scheduled meetings, if necessary. C. City may require Artist to make such revisions to the Final Designs as are necessary for the Works to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Sites for reasons of safety and security. d• City may also require Artist to make such revisions to the Final Designs as City deems necessary in its sole discretion. e. Within thirty (30) days of its receipt of Artist's submission(s) of the Final Designs, City shall notify Artist of its approval, or disapproval, of such submissions and of each revision made in the Final Designs. Revisions made pursuant to this section 2.6, upon approval by City, shall become part of the Final Design(s). £ If one or both Final Designs or any required revisions to one or both of the Final Designs are disapproved by City, Artist shall have thirty (30) days, unless agreed to otherwise in writing by the Parties, to resubmit the Final Design(s) in conformance with City's requirements,. g. If resubmitted materials for one or both Final Designs are not approved by City, this Agreement may be terminated in whole or in part at City's sole discretion, with payment for work performed on the disapproved Final Design(s) per the payment schedule in Article 3 up through the date of termination. Artist shall provide the disapproved Final Design presentation materials to Contract Manager to become part of City's Public Art archive. h• Upon the expiration of the Term, as hereinafter defined, of this Agreement, if either or both of the Final Designs are accepted by City and funding is approved by the Fort Worth City Council, negotiations for fabrication, delivery, and installation of either or both of the Works shall commence, and shall become part of the deliverables under any subsequent artwork commission contract(s). i• Upon approval of either or both of the Final Designs by City, Artist shall provide the Final Designs 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 Designs and all other work products under this Agreement shall become the property of City, without restriction on future use (See section 5.La). Page 7 of 28 ART- COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation Total compensation to Artist under the Agreement shall not exceed FOURTEEN THOUSAND TWO HUNDRED FIFTY DOLLARS AND NO CENTS $14 250.00 , 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. FOUR THOUSAND DOLLARS AND NO CENTS ($4,000,00) upon execution of this Agreement. b. ONE THOUSAND SIX HUNDRED TWENTY-FIVE DOLLARS AND NO CENT'S"-($1,625,00) within thirty (30) days after Artist submits the Dewey Bridge Final Design Deliverables as required under Section 2.5 of this Agreement and makes presentation(s) of the Dewey Bridge Final Design to the FWAC. C. ONE THOUSAND SIX HUNDRED TWENTY-FIVE DOLLARS AND NO CENTS ($4,625,00) within thirty (30) days after Artist submits the Brennan Bridge Final Design Deliverables as required under Section 2.5 of this Agreement and makes presentation(s) of the Brennan Bridge Final Design to the FWAC. d. TWO THOUSAND DOLLARS AND NO CENTS ($2,000,00) within thirty (30) days after City's approval of the Final Design for Dewey Bridge. e. TWO THOUSAND DOLLARS AND NO CENTS $2 000.00 within thirty (30) days after City's approval of the Final Design for Brennan Bridge. Page 8 of 28 City may nay Artist un to THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) for engineering fees and 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 project. City shall supply Artist with the "Texas Sales Tax and Local Sales Tax Exemption Certificate" 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. ART_ 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 duties and/or 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 Page 9 of 28 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 a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) days before termination. The notice shall specify whether the termination is for convenience or cause. 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 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 finished and unfinished drawings, sketches, photographs, models, and any other work shall automatically become property of City. b. Should Artist's Final Designs have been approved, in the event of termination under this Section 4.5, City shall have the right to complete the Works. 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. ART- DISPUTE RESOLUTION 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 Page 10 of 28 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) 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) days following the date of request, except upon Agreement of both 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) 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 shall have the right to exercise any and all remedies available under law regarding the dispute. ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1 General a. Upon payment in full to Artist, the Conceptual Designs, Final Designs, Works, and all other work product under this Agreement shall become 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 Conceptual Designs. Final Designs. and/or Works. By execution of this Page 1 1 of 28 Agreement, Artist grants to City a perpetual, irrevocable license to graphically depict or display the Conceptual Designs, Final Designs, and Works for any non-commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Conceptual Designs, Final Designs, or Works 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. The City shall take title to all documents and/or drawings, which constitute or are components of the Conceptual Designs, Final Designs, and/or Works upon final approval of the Final Designs. 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 Conceptual Designs, Final Designs, and/or the Works, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two-dimensional reproductions of the Conceptual Designs, Final Designs, Works, and accompanying materials for any municipal purpose. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "© date, Artist's name." d. Nothing in this Agreement shall prevent Artist from using images of the Conceptual Designs, Final Designs, or Works for marketing and promotional purposes in connection with Artist's business, provided, however, that Artist shall make its best effort to credit City for commissioning the Works whenever possible. 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 the City from locating the 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 the Artist when matters arise relating to Artist's rights. Page 12 of 28 ART_ WARRANTIES OF TITLE AND COPYRIGHT The Artist represents and warrants that: a. The Conceptual Designs, Final Designs, and/or Works shall be the original product of the Artist's sole creative efforts. b. The Conceptual Designs, Final Designs, and/or Works is and will be unique and original, and does not infringe upon any copyright or the rights of any person; C. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Conceptual Designs, Final Designs, and/or Works or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. The Conceptual Designs, Final Designs, and/or Works (or duplicate thereof) have not been accepted for sale elsewhere; e• Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and f. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary care, skill and diligence. ART- ARTIST AS INDEPENDENT CONTRACTOR The Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. The 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. Page 13 of 28 ART- INDEMNIFICATION 9.1. General Indemnity a. 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 ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY HIND 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 RECOEVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER HIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ARTIST'S 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. 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. Page 14 of 28 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 FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Artist. 9.3. Survival All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. ARTICLE 10 EQUAL OPPORTUNITY a. Artist shall not 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. Artist agrees to post in Page 15 of 28 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, sexual 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 MISCELLANEOUS 11.1. Compliance The 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 A reement 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. Page 16 of 28 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 the City and the Artist and their respective successors and permitted assigns. 11.7. No Third-Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of the City and the 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. Page 17 of 28 I 1.10. 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. 11.11. Fiscal Funding Out If for any reason, at any time during any term of this Agreement, the 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 the City to the Artist of written notice of the City's intention to terminate or (ii) the last date for which funding has been appropriated by the City Council for the purposes set forth in this Agreement. 11.12. Ca tions Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13 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 Section 11.13 shall survive expiration or earlier termination of this Agreement. 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 the City under the City's M/WBE ordinance. Page 18 of 28 IL 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 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 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. 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 Page 19 of 28 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 City Manager's Office City of Fort Worth 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney 1000 Throckmorton Street, Third Floor Fort Worth, Texas 76102 Martha Peters, VP-Public Art Arts Council of Fort Worth& Tarrant County 1300 Gendy Street Fort Worth, Texas 76107 Leticia Huerta Studio, L.L.C. Leticia Huerta 9630 Requa Road Helotes, Texas 78023 [SIGNATURES ON THE FOLLOWING PAGE] Page 20 of 28 IN a14e'ITN ESS HEKEOF, the parties hereto h2ve executed this Agreernent on the Effective Date. CITY OF FORT WORTH ARTIST rte` by; Fcmanclo Costa y; I<c}icia Huert . �iemb�r '4s istarit�C`ity Manager Leticia If uerta.Studio, L.L.C. APPROVED AS TO FORM AND IXG A .ITV Tyler F_Wallach Assistant City Attorney ATTIESTEP RV-, Marty Hendrix City Secreta:ny +C ontrct horim fi►n No M&CRequired f Related LeBow Channel �Vatersh+ed public art project contracts are CSC #63936 of July 2W,CSC 437214 of June 16. 2008, and CSC 438686 June 9, 1009, authorized by M&C # C- 215 31 datcd Junc 21?. 2(J(: t F RECORD ETARY H, TX Pitio; :I .i x IN WITNESS HEREOF, the parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH ARTIST by: Fernando Costa by: Leticia Huerta, Member Assistant City Manager Leticia Huerta Studio, L.L.C. APPROVED AS TO FORM AND LEGALITY: Tyler F. ch Assistant City Attorney ATTESTED BY: M ��t Vl Marty Hendrix City Secretary Contract Authorization: No M&C Required (Related LeBow Channel Watershed public art project contracts are CSC #33936 of July 31, 2006, CSC #37214 of June 16, 2008, and CSC #38686 June 9, 2009, authorized by M&C # C- 21531 dated June 20, 2006) FOFFFICIAL RECORD SECRETARYWORTH, TX Page 21 of 28 Exhibit A: The Site Lower Lebow Channel Watershed (with Brennan and Dewey bridge locations marked) ! f i i f 4111 Oak, `"•' j tM�rle�15trJS ZXAS :O Page 22 of 28 Exhibit B: Artist's Conceptual Proposal Brennan Avenue Bridge Concept Dewey Street Bridge Concept Page 23 of 28 Exhibit C: Budget ARTIST'S FEE t2ax> TRAVEL (For artists who live more own 50 roues from Fort Worth) Airfare Car Rental Per Diem Expenses at a per day Mileage at$ per mtle INSURANCE AutoMweded Vehicle Liability General LiabiTtry for Artist/yrs Worker's Comp_/EmpioWs Liability ober,as applicable ADMINISTRATIVE EXPENSES Phone/Fax Deivery/Shippi►►9(for corresparderrc®,samples,modals,di-tgs etc) Reprographic Service supplies PROFESSIONAL CONSULTANT FEES (it aWicable,d awing must be signed and seated by a professional rggistered to Practice In the State of Texas) Architect* Structtnal Engine Electr9gi Engineer• Conservator* Photographer{tor d0airrrentabon of conVieW nartrY Other* MATERIALS (Pkrase attach a complete fist of m2terials.If wnize alt anfico2ted aspects and components vattt per unit cast estimates) Materials*Tom FABRICATION COSTS Qnckrde and Rernize al Portions of subcontracted work and nark to be corrrpleted by artist.) Artist's Labor(_tours at 5 Per horn)Total S€Ixonbacted Labor*(Total) FacilfWEquipment Rental(rued exckutvely for"S project)related to fabrication SITE PREPARATION (Do not mckrde costs covered by FWPA,City of Fort Worth or others) Test Drilirg* Removal• L wdw-vv/mgat-* Electrical Modifications* Water Work/Mec wwcal Devices other (Revised May 2011) Page 24 of 28 TRANSPORTATION Materials to Fabricatiorn Site' Finished Work to Installation Site' OthW BASUMOUNTING Base Wunting Devices and Components Foundation/Footing Other INSTALLATION COSTS (Costs must include allowance tar after hours installation,if applicaW,Please attach a complete list of equipment and individual estimates with this form) Subcontracted Labor• Scaffoktkng* Equipment Rental related to isnstanatW Off-duty PoficelSecurity' Traffic Barriers` Storage Facility Rental` City Permits Display Devices Fireproofing` Site Restrxation* Otter` LIGHTING Designers. Fixhxes` B€dbs* Site Preparation• Installation' GRAND TOTAL Please make any necessary notes here: Prepared By. Date. {Revised May 2011) Page 25 of 28 Exhibit D: Sales Tax Exemption TEXAS PTION clai In an exemption fi-out payment of sales and M�taxes for the p - ftaxAl it 11, tv,10W or on the attached*TdcT or invoice, Urchase a C C described Desci*iotl Of Items(or an attached order or invoice)To He Purehalm ml I claim this exemption for the ftillowing rem ,fl; Name ref f_xemp,Organj_tion. CITY OF FORT WORTIJ,TEXAS TEXAS SALES AND USE TAX PERMIT NUMBER 1-75.000�oq" Nied for which materials and supplies are purchased: 1 under%"that I will be liable for payment ofsales tax,which may bm-)mc due tear failure com with the provi-,ions ofthe state.city,andor mcft�4*1,tan tr ,to alls,t t ply comlit"011CF rules regarding 9-xempt purchases, an horitY Ics and use teat laws acid LiAhiilitY fiche The tax will be det , by the price paid for the taxable items purchased or the ffir m&ket rental am nod _ pti p d value fOy the Petiod of time used. I understand that it is a Misdemeanor to give ,an exemption Certificat tothe seller f know,at the time Ofthe purchase,will be used in a Manner other t e of taubte items which and,upon mnvictiod,may be fined up to SS(V per oflensc ban that expensed in this mtific;ale Purchaser Status Duc amm�ig Entity CITY OF FORT WORTM TEXAS Street Address, 1000 THROCKMORTON XMEET Cita.State-Zip COdc:FORT,WORTH"TEXAS 76102 '0, Sign Here, ]1_20 04 ---------- This certificate ,does fl6l wire a number to be valid, Salem and use tax-csCmtXi(M nk r-,tax exempt"numbers do not exist, unben, -) This cert jfiC0tcStW-Wld he furnished to the supplier.Do and send the completed cerlifivate[t)the COrriptrolter Of Public Accounts, Page 26 of 28 Exhibit E: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this project, naming City as an additional insured on each policy of insurance, except Workers Compensation. If Artist subcontracts fabrication, transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s) to abide by all of the following insurance requirements. Artist shall require the subcontractor(s) to name Artist and City as additional insureds. Commercial General Liability(CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO)policy. The policy shall name City as an additional insured. Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non-owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease -per each employee $500,000 Bodily Injury/Disease - policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.). GENERAL POLICY REQUIREMENTS Thirty (30) days notice of cancellation or non-renewal. Page 27 of 28 Example: "This insurance shall not be cancelled or non-renewed, until after thirty (30) days prior written notice has been given to City of Fort Worth, except for ten (10) days notice for non- payment of premium. Waiver of rights of recovery (subrogation) in favor of City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. "Unless otherwise stated, all required insurance shall be written on an "occurrence basis." (If coverage is written on a claims-made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to City shall evidence such insurance coverage.) The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. Page 28 of 28