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HomeMy WebLinkAboutContract 46927 t a.p 0 11 r? (ATY SF � eRETAW RECEIVE` I ONTRACT NQ._k9 2.r7 J AUG 12 201 -� CT(yOFFDRTWORTI AGREEMENT BETWEEN THE CITY OF FORT WORTH AND 2,, CTYSECMARY GREGORY BECK FOR PRELIMINARY AND FINAL DESIGN OF OF PUBLIC ART FOR EAST DIVISION POLICE. STATION This Agreement, entered into this I 3t�qy of Al IL 2015 by and between the City of Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Gregory Beck, an individual, residing at 4721 Staples Avenue, Fort Worth, TX 76133. 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, funding for a public art project at or near the intersection of Dallas Avenue and East Lancaster Avenue was included in the Public Art Plan for the 2004 Capital Improvement Program, adopted by the Fort Worth City Council on May 17, 2005 as M&C G-14801); WHEREAS, artist Jack Mackie's Public Art Master Plan for the East Lancaster Corridor of 2009 recommended that a North Texas artist be selected to create an artwork at the Fort Worth Police Department's East Division Police Station; WHEREAS, the Fort Worth Art Commission approved a plan to commission a removable two- dimensional work for the exterior of the station building that would be visible from various vantage points; WHEREAS, the project was included in the Fort Worth Public Art Fiscal Year 2015 Annual Work Plan, adopted by the Fort Worth City Council on October 14, 2014 as M&C C-27031 as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS, the Contract Manager conducted a competitive process for artist selection, which was overseen by the Fort Worth Art Commission(FWAC), for design and commission of an artwork for the Site; WHEREAS, on April 13, 2015, the FWAC approved the Selection Panel's recommendation of Gregory Beck for the project, and recommended that the Artist be retained for design of an artwork for the Site based on his proposal; WHEREAS, the Artist's proposal is to create a visual landmark for the site that highlights history and identity titled Pieces of Yesterday, Today, and Tomorrow, composed of large-scale aluminum jigsaw puzzle-shaped elements, featuring images of contemporary community ic; events OFFICIAL RECORD CITY SECRETARY Agreement Between the City of Fort Worth and Gregory Beck FT. WORTH, ge of 23 For Preliminary and Final Design of Public Art for the East Division Police Station 115 e and places that capture the distinct personality of East Fort Worth, wrapping around the northwest corner of the East Division Police Station at Weiler Boulevard and East Lancaster Avenue; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed; NOW, THEREFORE, City and Artist for and in consideration of the covenants and agreements hereinafter set forth,the sufficiency of which is hereby acknowledged, agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms shall have the meanings as set forth below: 1.1.Agreement—Means and includes this agreement between the City and Artist for Final Design of Public Art for the Site. 1.2. Artist — Means and includes Gregory Beck and/or his heirs, executors, administrators, legal representatives, successors, agents, subartists,contractors and assigns. 1.3. Artwork Design — Means and includes the Preliminary Design and Final Design of the Work, which is defined in 1.3.a. and 1.3.b. below. 1.3.a. Preliminary Design—Means all preliminary drawings, sketches, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work, including, but not limited to, the design concept attached hereto as Exhibit "A" and incorporated herein for all purposes. 1.3.b. Final Design—Means Artist's final, proposed design of the Work for the Site,which is based upon the Preliminary Design and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artist in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include Artist's specifications for fabrication and installation of the Work. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and/or its officers, directors, employees. 1.5. City—Means and includes the City of Fort Worth. 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 2.6 of this Agreement that are required for City's review and approval. 1.8. Parties—Means and includes City and Artist. Agreement Between the City of Fort Worth and Gregory Beck Page 2 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 1.9. Preliminary Design Deliverables—Means and includes those items set forth in Article 2.4 of this Agreement that Artist is required to submit to City for its review and approval prior to proceeding to the Final Design phase of this Agreement. 1.10. Project — Means and includes the capital improvement/public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.11. Project Stakeholders — Means and includes the appropriate City Council Member(s), and their appointed community representatives and the Fort Worth Art Commission's appointed representative and others as may be appropriate. 1.12. Site—Means and includes the north and west facing exterior walls of the East Division Police Station located at the intersection of Dallas Avenue, East Lancaster Avenue and Weiler Boulevard, which is more particularly described in Exhibit "B," attached hereto and incorporated herein by reference for all purposes. 1.13. Work — Means and includes the finished objects of art and design that are the subject of this Agreement, or any intermediary stage of completion of such works. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artist Selection. City and Artist acknowledge that the Selection Panel's recommendation of Gregory Beck was approved by the FWAC on April 13, 2015, as the basis for executing this Agreement with the Artist. 2.2. Scone of Services. a. Artist shall perform all services and will furnish all supplies,materials, and equipment as necessary for developing a Preliminary Design and Final Design of the Work and for providing the Preliminary Design Deliverables and Final Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Prior to beginning Preliminary Design, Artist shall meet with community members, neighborhood associations, local business owners and stakeholders for input on imagery and selection of individuals who may be depicted in portions of the artwork. C. Artist shall obtain written releases from individuals (or their heirs) for those whose likenesses are depicted in the Work and shall provide copies of such releases to Contract Manager. d. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from Project Stakeholders and approval by City as set forth in this Agreement. e. Artist shall meet and coordinate with City staff and others, as necessary, to integrate the Work into the Site in terms of structural support for the Work. Agreement Between the City of Fort Worth and Gregory Beck Page 3 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 f. Artist shall propose a method of lighting the Work and shall provide a separate budget for such lighting and electrical service to support the Work for the consideration of the City. 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. The location at the Site on which the Work shall be installed shall be mutually agreed upon by City and Artist. L Artist shall present the Preliminary Design and the Final Design to the FWAC and appropriate City committee, City staff, Project Stakeholders and other City boards or commissions, as appropriate, for review and input and, subsequently, to the FWAC for approval at dates and times mutually agreed upon. 2.3. City Assistance. Upon request by Artist, City shall promptly furnish all information and materials required by Artist to the extent that such materials are available. City, upon request by Artist, shall also provide correct scaled drawings of the Site, if available. 2.4. Preliminary Design Deliverables. 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 2.4. to City for approval. Preliminary Design Deliverables shall consist of the following: i. A narrative description of the Artist's concept, proposed materials, fabrication, and installation methods,timeline for completion and maintenance, and anticipated annual maintenance requirements; ii. Design illustrations for the Work for the Site, which shall be in a high-resolution digital format, such as JPEG or TIF files; iii. Installation diagram, including approximate weight of the Work and proposed attachment method(s); iv. A preliminary budget estimate, on the budget form attached hereto as Exhibit "C," for implementation of a final design of the Work in an amount not to exceed THIRTY SEVEN THOUSAND, FOUR HUNDRED THIRTY SEVEN DOLLARS AND FIFTY CENTS ($37,437.50.), reflecting total costs and inclusive of remaining artist's fees, materials, labor, fabrication, transportation, construction, insurance, installation and all associated costs for the Work; V. A separate, preliminary budget estimate for artwork lighting; on the budget form attached hereto as Exhibit"C;"and Agreement Between the City of Fort Worth and Gregory Beck Page 4 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 vi. Material or fabrication samples and/or prototype models for the Work that show the size and placement of the Work in relation to the Site, as appropriate. 2.5. Preliminary Design Review. (a) Upon completion of the Preliminary Design Deliverables, Artist shall present the Preliminary Design to the FWAC for review and input at a regularly scheduled FWAC meeting. (b) After presenting to the FWAC for input, Artist shall meet with the designated Project Stakeholders, City staff, and other City boards or commissions, as appropriate, to present the Preliminary Design, at a date and time mutually agreed upon, for input. (c) Artist shall then present the Preliminary Design to the FWAC for approval at a regularly scheduled FWAC meeting. (d) City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty (30) business days of Artist's presentation to the FWAC. (e) If City disapproves of the Preliminary Design, either in whole or in part, then City shall inform Artist of each revision to be made to the Preliminary Design. City may require Artist to make such revisions to the Preliminary Design as City deems necessary in its sole discretion and/or for the Work to comply with applicable statutes, ordinances,or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. (f) Artist shall have thirty (30)calendar days from the date City informed Artist of the revision(s)to present the revised Preliminary Design in conformance with City's requirements. (g) If City disapproves of the resubmitted Preliminary Design, any further Preliminary Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate,with payment for work performed per the payment schedule in Article 3 up through the date of termination. (h) Upon City approval of the Preliminary Design, any revisions made to a City-approved Preliminary Design shall become part of the Preliminary Design. Artist shall incorporate any City-approved revisions into the final design in conformance with City's requirements. Any revisions shall become part of any final design deliverables if the Artist proceeds to the final design phase. Artist shall provide the Preliminary Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models, and/or drawings will be retained for archival and exhibition purposes. If the Preliminary Design is accepted by City, Artist may begin working on the final design stage for the Work pursuant to this Agreement. Agreement Between the City of Fort Worth and Gregory Beck Page 5 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 2.6. Final Design Deliverables. a. If City approves Artist's Preliminary Design and Contract Manager provides written authorization for Artist to proceed to the Final Design phase of this Agreement, then, within three (3) months Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.6 to City for approval. Final Design Deliverables shall consist of the following: i. Detailed, design illustrations for the Work for the Site, which shall be in a high-resolution digital format, such as JPEG or TIF files; ii. A final written narrative for the Work, describing the following: (1) Final Design concept and timeline for completion; (2)Proposed materials, fabrication, and installation methods for all elements of the Work, including information regarding Artist's subcontractor(s), if any; (3) Maintenance requirements for all elements of the Work as dictated by Artist, along with cost estimates for annual maintenance; and (4) Proposed public education program to be conducted by Artist during the commission of the Work; iii. Comprehensive working drawings, detailing the means of installing all elements of the Work on the Site, together with other such graphic material as may be requested by City to permit City to carry out structural design review. Upon City's request, these drawings must be signed and stamped by an engineer and/or architect licensed to work in the State of Texas,as required by City. Artist will obtain and furnish to Contract Manager certificates of professional liability insurance from each such licensed professional and will require the City to be named as a "certificate holder" entitled to notice of cancel lation/nonrenewal in accordance with standard practices. iv. A detailed, final budget, on the budget form attached hereto as Exhibit "C," for installation of the Artwork in an amount not to exceed THIRTY SEVEN THOUSAND, FOUR HUNDRED THIRTY SEVEN DOLLARS AND FIFTY CENTS ($37,437.50.), which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, remaining Artist's fee, and all other associated costs for the Work. The detailed budget will be for implementation of the Work through a possible artwork commission contract with City. V. A separate, detailed, final budget for artwork lighting; on the budget form attached hereto as Exhibit"C." 2.7. Final Design Review. a. Upon completion of the Final Design Deliverables, Artist shall present the Final Design to the FWAC for review and input at a regularly scheduled FWAC meeting. Agreement Between the City of Fort Worth and Gregory Beck Page 6 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 b. After presenting to the FWAC for input, Artist shall meet with the designated Project Stakeholders, City staff and other City boards or commissions, as appropriate, to present the Final Design at dates and times mutually agreed upon for input. C. Artist shall present the Final Design to the FWAC for approval at a regularly scheduled meeting. d. City may require Artist to make such revisions to the Final Design as are necessary for the Work to comply with applicable statutes, ordinances, or regulations of any governmental regulatory agency having jurisdiction over the Site for reasons of safety and security. C. City may also require Artist to make such revisions to the Final Design as City deems necessary in its sole discretion. f. Within thirty (30) business days of its receipt of Artist's submission of the Final Design, City shall notify Artist of its approval, or disapproval, of such submission and of each revision made in the Final Design. Revisions made pursuant to this Article 2.7, upon approval by City, shall become part of the Final Design. g. If the Final Design or any required revisions to the Final Design is disapproved by City, Artist shall have thirty (30)calendar days to resubmit the Final Design in conformance with City's requirements. h. If resubmitted materials are not approved by City, this Agreement may be terminated at City's sole discretion, with payment for work performed per the payment schedule in Article 3 up through the date of termination. Artist shall provide the Final Design presentation materials to Contract Manager to become part of City's Public Art archive. Upon the expiration of the Term, as hereinafter defined, of this Agreement, if the Final Design is accepted by City and funding is approved by the Fort Worth City Council, negotiations for fabrication, delivery, and installation of the Work shall commence, and shall become part of the deliverables under any possible subsequent artwork commission contract. i. Upon approval of the Final Design by City, Artist shall provide the Final Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models and/or drawings will be retained for archival and exhibition purposes. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.I. Compensation. Total compensation to Artist under the Agreement shall be in an amount up to SEVEN THOUSAND, FIVE HUNDRED SIXTY TWO DOLLARS AND FIFTY CENTS ($7,562.50), which shall constitute full compensation for any and all costs associated with this Agreement, including, but not limited to, artist's fee, engineering and consulting fees and services performed and materials furnished by Artist Agreement Between the City of Fort Worth and Gregory Beck Page 7 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 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. ONE THOUSAND DOLLARS AND NO CENTS ($1,000.00)upon execution of this Agreement. b. TWO THOUSAND, AND SIXTY TWO DOLLARS AND FIFTY CENTS ($2,062.50) within thirty (30) days after Artist submits the Preliminary Design Deliverables as required under Article 2.4 of this Agreement and makes a presentation of the Preliminary Design to the FWAC and the City notifies the Artist of its approval of the Preliminary Design. C. TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) within thirty (30) days after Artist submits the Final Design Deliverables as required under Article 2.6 of this Agreement and makes a presentation of the Final Design to the FWAC and the City notifies the Artist of its approval of the Final Design. d. City may pay Artist in an amount up to TWO THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($2,500.00) for engineering and lighting consulting fees and a conservator's consultation 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. 3.3. Sales Taxes. City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due upon the project. City shall supply Artist with the "Texas Certificate of Exemption" in substantially the same form as that attached hereto as Exhibit"D"for use by Artist in the fulfillment of this Agreement. 3.4. Artist' 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. ARTICLE 4 TERM AND TERMINATION 4.1. Term. This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to such provisions in this Agreement, shall extend until final payment to Artist by City. 4.2. Gratuities. City may cancel this Agreement if it is found that gratuities in the form of entertainment, gifts, or otherwise were offered or given by Artist or any agent or representative to any City or Contract Manager Agreement Between the City of Fort Worth and Gregory Beck Page 8 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5 of this Agreement. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written "Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this provision shall not relieve the party in default of any liability for damages resulting from a breach or a violation of the terms of this Agreement. 4.4. Termination for Convenience. a. The services to be performed under this Agreement may be terminated by either party, subject to written notice submitted thirty (30) calendar days before termination, specifying the grounds for termination. b. If the termination is for the convenience of City, City shall pay Artist for services actually rendered up to the effective date of termination, 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 Artist's receipt of payment in full of all monies due for services provided up to the effective date of termination, 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 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, 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 Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. Agreement Between the City of Fort Worth and Gregory Beck Page 9 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 ARTICLE 5 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 first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute,or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise out of, or in connection with this Agreement. If the Parties fail to resolve the dispute within sixty(60)calendar days of the date of receipt of the notice of the dispute, then the Parties may submit the matter to non-binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five(45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or to the identity of a mutually agreed mediator within thirty (30) calendar days following the date of the request for mediation,then all the conditions precedent in this article shall be deemed to have occurred. The Parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute.(See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. General. a. Upon payment in full to Artist, the Artwork Design, Work, and all other work product under this Agreement shall become 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/or Work. By execution of this Agreement, Artist grants to City a perpetual, 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, Agreement Between the City of Fort Worth and Gregory Beck Page 10 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 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 permission 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/or the 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, Work, 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 Artwork Design or Work for marketing and promotional purposes in connection with Artist's business; provided, however, that Artist shall make its best effort to credit City 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 City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT Artist represents and warrants that: a. Artwork Design and/or Work shall be the original product of the Artist's sole creative efforts. b. Artwork Design and/or Work 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 Artwork Design and/or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; d. Artwork Design and/or Work(or duplicate thereof)have not been accepted for sale elsewhere; Agreement Between the City of Fort Worth and Gregory Beck Page 11 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 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. ARTICLE 8 ARTIST AS INDEPENDENT CONTRACTOR Artist shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artist shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of his/her officers, agents, employees and subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between City and Artist, his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artist. ARTICLE 9 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, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT,OF WHATSOEVER KIND OR CHARACTER,WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE NEGLIGENT ACT, ERROR, OR OMMISSION OF ARTIST AND/OR ARTIST'S SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. Agreement Between the City of Fort Worth and Gregory Beck Page 12 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 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. 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. 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 conspicuous places, available to employees and applications for employment, notices to be provided by the 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 the Artist, state that all qualified applicants shall receive consideration for employment without regard to race, Agreement Between the City of Fort Worth and Gregory Beck Page 13 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 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 City, 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. ARTICLE 11 MISCELLANEOUS 1I.1. Compliance. Artist shall comply with all Federal, state and local statutes, ordinances and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments. No alteration, change, modification or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of the City. 11.4. Waiver. No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. 11.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and Assigns. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such Agreement Between the City of Fort Worth and Gregory Beck Page 14 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and their respective successors and permitted assigns. 11.7. No Third-Party Beneficiaries. The provisions and conditions of this Agreement are solely for the benefit of City and Artist, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 11.8 Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 11.9. Force 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. 1 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 Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or(ii)the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Agreement Between the City of Fort Worth and Gregory Beck Page 15 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 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. Artist shall require all of its subcontractors to include in their subcontracts a right to audit in favor of City in substantially the same form as described in this Article 11.13. 11.14. Certified MWBE. If applicable, Artist shall make its best effort to become a certified Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) firm with a certifying agency whose certification is accepted by City under the City's Business Diversity Enterprise Ordinance. 11.15. Survival Provision. The provisions contained in Articles 4.5 (Incapacity of Artist), 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), 9 (Indemnification), and 11.13 (Right to Audit)shall survive the termination or expiration of this Agreement. 11.16. Counterparts and Electronic Signatures. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 11.17. Time Extensions. The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement. ARTICLE 12 NOTICES All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: 1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager City Manager's Office City of Fort Worth 1000 Throckmorton Street Fort Worth,TX 76102 Agreement Between the City of Fort Worth and Gregory Beck Page 16 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 Copies to: Sarah Fullenwider, City Attorney Office of the City Attorney 1000 Throckmorton Street, Third Floor Fort Worth, TX 76102 Martha Peters, Vice President of Public Art Arts Council of Fort Worth& Tarrant County 1300 Gendy Street Fort Worth,TX 76107 2. ARTIST: Gregory Beck 4721 Staples Avenue Fort Worth, TX 76133 IN WITNESS HEREOF,the Parties hereto have executed this Agreement on the Effective Date. CITY OF FORT WORTH ARTIST by: � by: Fernando Costa Gregory Beck Assistant City Manager APPROV D S TO FORM AND LEGALITY: Jessicaan svang Assistan C' y Attorney ATTESTED BY:" 0RIr' Mary Kays City Secretary �omoo�Uo rEX No M&C Required OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Agreement Between the City of Fort Worth and Gregory Beck Page 17 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 Exhibit A: Preliminary Design r� :m It r i J Agreement Between the City of Fort Worth and Gregory Beck Page 18 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 3 'A. Front View (E Lancaster Avenue) •4, I IF Ilk KAI p loop � �� .. Agreement Between the City of Fort Worth and Gregory Beck Page 19 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 S � Exhibit B: The Site ,e .rAkAw a nae Laarr Van Naha Ln Van Natte Ln Park Meadow h FAWLYDOUAwal AvP � Fabl/IawWear &atySt �. .� Sealy sI �. WWI tkaYaOFie pinNealt Beath.�. Iro esiib L&" iM ter TMk a ® a m PJob carer Mft. r; La."esrsice..kw AOph O0.Inc C,.t ATM ra )StoreSWC) Iso ck a Sa OinaBprea µ�''as7,�, ®A- Ra9as pve DOM Ave Avg, Craig St1 St st aka's caalaae Ctnad�r. � � �. St RAie Sritod* iea � ,r.-. sl FL.cadrelk chwch _ . N Hampshire Blvd � s_ LilteeLrMmna a s.,r..�..n.a.a.o..,ru.�,...e.re...e......�.:R..ewn..o<.r,,..�,ra..a.:,�..o<..,,..r,.,>�...o<.....�.,aa.a......,...�.,.,.e.r - t i ......�. ........................ .......... .. � a t East Precinct Police Butidine a Loratad at dw kdwssctlom of Ddla hi- _ . . • - ) —,Waasr aaulword,and Fiat U.-t-, - d dw Emt Pruckwi Polito Statim Is a ra-cao- 11 I.Pw talhntion of en mktktg brit end a dvic - kreabnont In ttw comnnitbs d East Lan- I I I i1 - ___•_ ,� castw Thu Fort Worth Mko Dopw nwnt a; _ romgntm Itwt ttw buadbq caAd pn—t a bolter pdAk tam wW wal pwt wwith Fort Worth Pubtk An to*Wg the buadky's I Irban M.A cammksiomd artht MR bo .,: •. .J. asked to prapolo art work for th.bulkl- in Moa toad—may bwkwic dw brick erdwlar and/w the chWwtb*farce atang }r Deltas Awaio. '�•�-. r ® _ D Agreement Between the City of Fort Worth and Gregory Beck Page 20 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 Exhibit C: Budget FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate rr np e,e with per unit costs(no Jump sums)for all items designated with an asterirO('� Cost increases must also have a written estimate attached. ARTIST'S FEE TRAVEL (For artists who live more than 50 miles from Fort Worth) Airfare Car Rental Per Diem Expenses at i�per day Mileage at S®per mile INSURANCE Auto/Hired Vehicle Liability General Liability for Artist d Subcontractors Worker's Comp./Employers Liability Other,as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery/Shipping(for correspondence,samples,models,drawings etc) Reprographic Service Supplies PROFESSIONAL CONSULTANT FEES (H applicable,drawing must be signed and sealed by a professional registered to practice in the State of Texas) Architect' Structural Engine Electrical Engineer' Conservator* Photographer(for documentation of completed work)* Other* MATERIALS (Please attach a complete list of materials.Itemize all anticipated aspects and components with per unit cost estimates) Materials'Total FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be completed by artist.) Artist's Labor(, hours at S_per hour)Total Subcontracted Labor'(Total) Facility/Equipment Rental(used exclusively for this project)related to fabrication SITE PREPARATION (Do riot include costs covered by FWPA,City of Fort Worth or others) Test Drilling' Removal* L andscapinglirfigstion' Electrical Modifications' Water Wortc/Meehanieai Devices Other' 3 (Revised May 2011) TRANSPORTATION Materials to Fabrication ate* Finished Work to Installation Site" Other" BASE/MOUNTING Base Mounting Devices and Components Foundation/Footing Other INSTALLATION COSTS (Costs must include allowance for after hours installation,if applicable.Please attach a complete list of equipment and individual estimates with this form) Subcontracted Labor' Scaffolding' Equipment Rental related to installation' Off-duty Police/Secur@y' Traffic Barriers' Storage Facility Rental' City Permits Display Devices Fireproofing' Site Restoration' Other' LIGHTING Designers' Fixtures' Bulbs' Site Preparation' Installation' GRAND TOTAL Please make any necessary notes here: Prepared By: Date: (ReviseC May 2011) Agreement Between the City of Fort Worth and Gregory Beck Page 22 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15 Exhibit D: Sales Tax Exemption O,M W-339(Back) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Name of purcimser,Gm or agency City of Fort Worth Address(sheer a number,P.O.Box or Route number) PrionO(Arca coda and mm�ber) 1000 Throckmorton street 817-392-8325 City,State.ZIP ode Fort Worth,Texas 70102 1,the purchaser named above,claim an exemption from payment of sales and use taxes(for the purchase of taxable Items described below or on the attached order or invoice)from: Seller: All Vendors Street address: —__.._... _ _ __—_____._.._ _City,State,ZIP code: Description of items to be purchased or on the attached order or invoice: All Items Purchaser claims this exemption for the following reason: Governmental Municipality I understand that I will be liable for payment of all state and local sates or use taxes which may become due for failure to comply with the provisions of the Tax Code and/or all applicable law. I understand thatit is a criminal offense to give an exemption certificate to the seller for taxable Items that I know,at the time ofpurchase, will bo used in a mannerother than tlwt exprossodin this codifrcato,and depending on the amount offax evaded,the offense mayrange from a Class C misdemeanor to a felony of the second degree. T"o Pale sign here Assistant Finance Director 2/2612014 NOTE: This certificate cannot be Issued for the purchase,lease,or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID. Sates and Use Tex"Exemption Numbers"or'Tax Exempt"Numbers do not exist. This certificate should be furnished to the supplier. Do=send the completed certificate to the Comptroller of Public Accounts. Agreement Between the City of Fort Worth and Gregory Beck Page 23 of 23 For Preliminary and Final Design of Public Art for the East Division Police Station Execution Copy 7/23/15