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Contract 46947
GUY SECR AW « CONTRACT , d �Q "'+r�erm.^�'wm.r�xma.o:zvtavmYt�u, AGREEMENT BETWEEN THE CITY OF FORT WORTH AND ETTY ISH-HOROWITZ AND KEVIN SLOAN FOR FINAL DESIGN OF PUBLIC ART FOR INTERSTATE 30 This Agreement is entered into this 2-0 day of 9 a, , 2015, by and between the City of w Fort Worth, a home-rule municipal corporation of the State of Texas, acting by and through Fernando Costa, its duly authorized Assistant City Manager, and Etty Ish-Horowitz, an individual, of 3717 Cole Avenue, Apartment 282, Dallas, Texas, 75204, and Kevin Sloan, an individual, of 2400 Empire Central, Suite F, Dallas, Texas 75235. City has designated the Arts Council of Fort Worth and Tarrant County, Inc. (Contract Manager), 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, in 2004, City received the Texas Governor's Community Achievement Award(GCAA) from the Texas Department of Transportation(TxDOT), in the amount of$265,000.00 that may only be used for construction and installation of a Monument/Landscape Project on a State of Texas right-of-way that fulfills the City's expectations and meets TxDOT's design, safety,maintenance and funding requirements; r WHEREAS, the City has selected a State of Texas-owned and TxDOT-approved site within Fort Worth city limits for the Project; WHEREAS, at TxDOT's request, City has agreed to select a TxDOT-approved contractor and manage the construction of the Project; WHEREAS, funding for the Artists' Final Design has been recommended from the Public Art Fund and it was included in the Fiscal Year 2015 Annual Work Plan and Budget, adopted by the Fort Worth City Council on October 14, 2014 (M&C C-27031) as part of the City's agreement with the Contract Manager for administration of the public art program; WHEREAS,Artists were competitively selected through a process outlined in the Fort Worth Public Art Master Plan conducted by the Contract Manager with oversight of the Fort Worth Arts Council ("FWAC"), and were approved by the FWAC at a regularly-scheduled meeting on May 14,2012; WHEREAS, Artists were placed under a Preliminary Design Contract (City Secretary Contract No. 43918)dated November 27, 2012; ., OFFICIAL RECORD CITY SECREIN/1RY 6`x . ' �s�� ° 111 Ty��"�1' Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloa for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/1 /15 xw 1 of 27 WHEREAS, on February 16, 2015, the FWAC approved the Preliminary Design and recommended that Artists be placed under a Final Design contract, which shall include engineering and preparation of Construction Documents;and WHEREAS, City and Artists wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artists' ideas and statements as represented by the Work; NOW, THEREFORE, City and Artists 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 of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of public art for the Site. 1.2. Artists — Means and includes Etty Ish-Horowitz and Kevin Sloan and/or their heirs, executors,administrators, legal representatives, successors,agents,subartists,contractors, and assigns. 1.3. Artists' Consultants— Means and includes Bennett Benner Partners and their Sub- Consultants, Baird Hampton Brown Engineers,Kevin Sloan Studio,LLC. and other consultants as needed. 1.4. Artwork Design—Means and includes both the Preliminary Design and Final Design of the Work and Construction Documents,which are defined in 1.4.a., 1.4.b. and 1.4.c. below. 1.4.a. Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artists in connection with this Agreement, any prior agreement between Artists and City, and/or any agreement related to the Work in which the City is a third-party beneficiary, including, but not limited to, the design concepts created in Artists' Preliminary Design, attached hereto as Exhibit"A"and incorporated herein for all purposes. 1.4.b. Final Design — Means the Artists' final, proposed design of the Work for the Site, which is based upon the City-approved Preliminary Design and includes, but is not limited to, all final drawings, sketches, prototypes, maquettes, models, and the like that may be created by Artists in connection with this Agreement, or the like that are related, directly or indirectly, to the Work and shall include specifications for fabrication and installation of the Work. 1.4.c. Construction Documents — Means the sets of stamped engineering, architect and landscape architect drawings and notes, based on the approved Preliminary Design, that meet TxDOT and City requirements and contain all the information needed for the Project to be let and constructed. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 2 of 27 1.5. 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 organization, successor corporations, assigns,predecessors, stakeholders, administrators,and related companies. 1.6. City— Means and includes the City of Fort Worth, Texas and its officers, representatives, agents, servants,and employees. 1.7. City Project Manager — Means and includes the designated TxDOT-certified Project Manager the City has assigned to let the Project for bid and oversee the construction contract with the City's TxDOT certified Contractor. 1.8. 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. 1.9. Final Design Deliverables—Means and includes those items set forth in Article 2.4 and 2.5 of this Agreement that are required for City's review and approval. 1.10. Parties—Means and includes City and Artists. 1.11. Project — Means and includes the capital improvement or public art development undertaking of City for which Artists' services are to be provided pursuant to this Agreement. 1.12. Project Stakeholders — Means and includes the appropriate City Council Member(s), and their appointed community representatives and the FWAC's appointed representative and others as may be appropriate. 1.13. Site—Means and includes the TxDOT-approved and State of Texas-owned property in the right-of-way on the north side of Interstate 30,just west of the "Pantego Bible Church" sign near the eastern city limits of Fort Worth, Texas 76103, which is more particularly described in Exhibit`B," attached hereto and incorporated herein by reference for all purposes. 1.14. Work—Means and includes the completed Construction Documents that are the subject of this Agreement,or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Artists Selection. City and Artists acknowledge that Artists' Preliminary Design was reviewed and approved by the FWAC on February 16,2015, and is the basis for executing this Agreement with Artists. 2.2. Scope of Services. a. Artists shall perform or subcontract for the performance of all services and will furnish or subcontract for the furnishing of all supplies, materials, and equipment that are specified in this Agreement as necessary in order to provide Construction Documents for the Project in accordance with TxDOT specifications and for developing a Final Design of the Work, which together shall Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 3 of 27 r constitute the Final Design Deliverables. Artists' services shall be performed in a professional manner consistent with the professional skill and care provided by the same kind and type of professional practicing in the same or similar locality under the same or similar circumstances and in strict compliance with all terms and conditions in this Agreement.Artists shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Project, nor shall the Architect be responsible for a contractor's failure to perform any work in accordance with the requirements of the Construction Documents. Artists shall not have control over or charge of, and shall not be responsible for, acts or omissions of contractors or of any other persons or entities performing portions of the work for the Project who have not contracted with Artists. b. Artists shall determine the Artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from Project Stakeholders and written approval by City, TxDOT and the Federal Highway Administration(FHWA),as set forth in this Agreement. C. The location at the Site where the Work shall be installed has been mutually agreed upon by City, TxDOT and Artists. d. Acme Brick Company has agreed to donate brick material, and Artists have agreed to incorporate the brick material into their design; however, Artists shall determine the Artistic expression, scope, design, color and size of the brick design element, as outlined in Article 2.2.b. Artists will advise Contract Manager and City of the impact the inclusion of Acme Brick has on the budget for implementation. e. Artists shall present the Construction Documents to TxDOT, the Contract Manager and the City's Project Manager for review at 30%,60%and 90%completion. f. Artists shall subcontract with Bennett Benner Partners for the engineering and preparation of Construction Documents for the monument, who in turn shall subcontract with Baird, Hampton, Brown Engineers for structural engineering and surveying. f. The landscape architecture part of the Construction Documents shall be prepared by Kevin S1oan.Studio, LLC, as a subcontractor for Artists, for a fixed fee of$5,000.00. It is understood that this fee is over and above Kevin Sloan's Artist fee included in the budget for this Agreement. g. Changes in any of the above subcontractors must be approved by Contract Manager in writing. h. Artists, upon written request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. i. Upon written request of City, Artists shall consult with a qualified art conservator and shall provide written maintenance recommendations for the Work from said conservator to the Contract Manager. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 4 of 27 j. At 90%completion of design,Artists shall present the Final Design to the Contract Manager at least two(2)weeks before any formal presentations may occur to the FWAC. k. Artists shall present the Final Design to TxDOT,Project Stakeholders,the appropriate City staff, and other City boards or commissions, as appropriate, for input and to the FWAC for review and approval at dates and times mutually agreed upon. 1. Once the Project has been let and the bids received, Artists shall be involved in the process of awarding the Project to a qualified TxDOT certified contractor. 2.3. City Assistance. Upon request by Artists, City shall promptly furnish all information and materials required by Artists to the extent that such materials are available. City, upon request by Artists, shall also provide correct scaled drawings of the Site, if available. 2.4. Construction Document Deliverables. a. The Construction Documents shall include comprehensive working drawings detailing the means of installing all elements of the Artwork on the Site,together with other such graphic material to permit City, TxDOT and FHWA to carry out a design review and approval and so City may let the Project for bidding to TxDOT certified contractors. Artists and their subcontractors should refer to the TxDOT Project Specifications & Engineering (PS&E) Manuals, the TxDOT Roadway Design Manual and the TxDOT Local Government Project Procedures Manual, all of which are available on the TxDOT website; http://onlinemanuals.txdot.gov/txdotmanuals/pse/pse.pdf; http://onlinemanuals.txdot.gov/txdotmanuals/rdw/rdw.pdf and http://www.txdot.gov/govemment/processes-procedures/lgpp-manual.html as they prepare the Construction Documents. b. The monument part of the Construction Documents shall be stamped by a licensed engineer registered with the State of Texas and shall include: i. A survey of the site showing existing topography and location of proposed improvements,which will also serve as an attachment to the City's Monument Agreement with TxDOT; ii. A monument layout and dimension plan; iii. Detailed drawings of the steel letters that will spell "FORT WORTH," including their method of fabrication and attachment; iv. A concrete traffic barrier walls and footing layout plan with details; V. A lighting and electrical plan, including footings for the light fixtures; vi. A grading plan; vii. A geotechnical report; and Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10115 5 of 27 viii. A general notes section,describing details of what is covered in the plans. C. The landscape part of the Construction Documents shall be stamped by a licensed landscape architect and shall include : i. A planting plan, to include seed and planting details, bed preparation and soil composition, and planting instructions including specific locations by type of plant, along with hand watering instructions for the specified establishment period; ii. A mow strip plan; iii. An erosion control plan, including erosion control materials to be used;and iv. A general notes section,describing details of what is covered in the plans. d. The Construction Documents (monument and landscape drawing sets) shall include a cover sheet and/or a link to a web site with information on the requirements submitted bids must meet, including any construction time limits, the Project budget and a description of how bidders propose approaching access to the site and construction of the Project. e. The Construction Documents (monument and landscape drawing sets) shall list the Acme Brick component as a separate line item and shall require contractors to address it as a separate cost item in their submitted bids. f. Professional Liability Insurance is required in all circumstances for on-site artwork requiring engineering and/or architectural services. City and TxDOT will conduct a review of structural design and other related graphic material prior to installation of the Artwork. Artists will provide the Contract Manager a certificate of insurance for each licensed professional and provide City with a 30-day notice of cancellation of any policy required hereunder. g. The schedule for submittals of Construction Documents are as follows: i. Within six(6)weeks after the Effective Date, Artists shall submit 30%Construction Documents to Contract Manager,City's Project Manager and TxDOT for review and approval. ii. Within fourteen (14) weeks after the Effective Date, Artists shall submit 60% Construction Documents to Contract Manager, City's Project Manager and TxDOT for review and approval. iii. Within twenty-two (22) weeks after the Effective Date, Artists shall submit 90% Construction Documents to Contract Manager, City's Project Manager and TxDOT for review and approval. iv. Extensions must be requested in writing of Contract Manager and approved by City and TxDOT. 2.5.Final Design Deliverables. After the City has let the Project and within two (2) weeks of opening bids, Artists shall provide or contract for the provision of services and all supplies, materials, and equipment as specified in this Agreement Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 6 of 27 o necessary to provide certain deliverables, as set forth in this Article 2.5 to City for approval. Final Design Deliverables shall consist of the following: a. Detailed, design illustrations of the Work for the Site,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, showing the proposed Work from two vantage points with at least one illustration showing the Work's size and placement in relation to the Site. b. A final written narrative of the Work, describing the following: (1) the Final Design concepts and timeline for completion;(2)proposed materials, fabrication, and installation methods for all elements of the Work, including lighting design and information regarding Artists' subcontractor(s), if any,for the Work; (3) maintenance requirements for all elements of the Work as dictated by Artists, along with cost estimates for annual maintenance; and(4)proposed public education program or activity to be conducted by Artists at a time mutually agreed upon by the Parties. Notwithstanding anything herein to the contrary, City acknowledges and agrees that any schedule for the provision of the Work is an estimate,which may be modified or adjusted due to review by consultants,review and approval of submissions by TxDOT, changes in the scope of the Project, and or delays by City and/or contractors or third parties over whom Artists have no control. Accordingly, Artists shall have no liability for any such delays,to the extent said delays do not arise in whole or in part from the acts or omissions of Artists. C. A detailed budget, on the budget form attached hereto as Exhibit "C," for construction of the Artwork in the amount of TWO HUNDRED SIXTY FIVE THOUSAND DOLLARS AND NO CENTS ($265,000.00), which includes all costs for materials including landscaping, seeds, hand watering and erosion control, mow strips, concrete traffic barriers, steel letters, grading, labor, fabrication, delivery, installation, easement procurement, insurance, transportation, barricades and traffic control, lighting, and all other associated costs for the Work. The detailed budget will be for implementation of the Work through a construction contract between a TxDOT-certified contractor and the City, and which said contract is subject to the approval of the Fort Worth City Council. d. In the event that responsive construction bids exceed $265,000.00,Artist may submit a supplemental budget for FWAC review as an alternative to value engineering the Project. e. Artists shall also provide a budget estimate for a fee to be paid to the Artists under a separate Artists' consultation agreement for consultant services to be provided during the construction phase of the Project to be paid by the City. This fee shall NOT be included in the budget for implementation of the Final Design. f. Upon approval of the Final Design and budget, Artists shall provide the Final Design presentation materials to City and to the Contract Manager to become part of the City of Fort Worth Public Art Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the I-30 Gateway Monument Project Execution Copy 8/10/15 7 of 27 t ` archive owned by the City of Fort Worth. 2.6. Final Design Review. a. After construction bids have been opened by City, Artists shall present the Final Design to the FWAC for input at a regularly scheduled FWAC meeting. b. FWAC may recommend that Artists make revisions to the Final Design and Construction Documents in order for the Project to be constructible within the$265,000.00 GCAA Award budget. Alternatively,FWAC may recommend additional funds to construct the Project as designed. C. After presentation to the FWAC, Artists shall meet with the designated Community Group, City staff, and other City boards or commissions, as appropriate,to present the Final Design, at a date and time mutually agreed upon, for input. d. After presenting the Final Design as required in Article 2.5.a. and c, Artists shall present the Final Design to the FWAC for approval at a regularly scheduled FWAC meeting. e. City shall notify Artists of its approval, or disapproval, of the Final Design within thirty (30) business days of Artists'presentation to the FWAC under Article 2.5.d. f. If City disapproves of the Final Design, either in whole or in part, then City shall inform Artists of each revision to be made to the Final Design. City may require Artists to make such revisions to the Final Design as City deems necessary in its reasonable 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. g. Artists shall have thirty (30) calendar days from the date City informed Artists of the revision(s) to present the revised Final Design in conformance with City's requirements. h. If City disapproves of the resubmitted Final Design, any further Final Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment for work performed per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) L Upon City approval of the Final Design, any revisions made to a City-approved Final Design shall become part of the Final Design. Artists shall incorporate any City-approved revisions into the Final Design in conformance with City's requirements. Artists shall provide the Final Design presentation materials to the Contract Manager to become part of the City's Public Art archive. These documents, models,and/or drawings will be retained for archival and exhibition purposes. j. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Final Design is accepted by City and funding is appropriated by the Fort Worth City Council, the City shall award Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 8 of 27 9 } the Project to a TxDOT certified Contractor and fabrication and construction of the Work shall commence. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Fixed Fee. Total compensation to Artists under the Agreement shall be an amount up to NINETY THOUSAND, TWO HUNDRED SIXTY-EIGHT DOLLARS AND NO CENTS ($90,268.00),which includes a fixed Artists fee of TWENTY FOUR THOUSAND, SEVEN HUNDRED-FIFTY DOLLARS AND NO CENTS ($24,750.00) inclusive of incidental costs and all travel expenses, (the "Artists Fee") and an amount up to THIRTY SIX THOUSAND, FIVE HUNDRED FIFTY DOLLARS AND NO CENTS ($36,550.00) for structural and civil engineering, surveying, materials testing, geotechnical report and consulting fees, (the "Engineering and Consulting Fees")and an amount up to TWENTY EIGHT THOUSAND,NINE HUNDRED SIXTY-EIGHT DOLLARS AND NO CENTS ($28,968.00) for construction document preparation, (the "Construction Document Fees"),which shall constitute full compensation for all services and materials to be performed and furnished by the Artists under this Agreement. Artists and City may amend this Agreement to allow for additional payment if additional services are required. All parties agree that payments under this Agreement shall be made to Etty Ish-Horowitz, who shall be responsible for remitting to Kevin Sloan his percentage of the Artist Fee(50%of$24,750.00 or$12,375.00 paid per installments below)and for all payments to Artists' subcontractors. City shall not be liable to Kevin Sloan for any payments under this Agreement. The Artist Fee shall be paid in the following installments, expressed as portions of the Fee, each installment to represent full and final, non-refundable payment for all services and materials provided prior to the due date thereof: a. Six Thousand,Two Hundred Dollars($6,200.00)upon execution of this Agreement,recognizing that Artists have already invested time and expense in Preliminary Design coordination with the City and TxDOT. b. Five Thousand Dollars ($5,000.00) within thirty (30) days after Artists present the Construction Documents at 90%design to TxDOT for review. C. Six Thousand Dollars ($6,000.00) within thirty (30) days after TxDOT approves the 100% Construction Documents and the City lets the Project for bidding. d. Five Thousand Dollars ($5,000.00) within thirty(30) days after Artists present the Final Design and results of bids to FWAC for review and approval. e. Two Thousand, Five Hundred-Fi Dollars ($2,550.00) within thirty (30) days after City notifies Artists of its approval of Final Design and other items required under Section 2.4. and Section 2.5. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 9 of 27 f. The Engineering and Consulting Fees in an amount up to Thirty Six Thousand Five Hundred Fifty Dollars and No Cents ($36,550.00) shall be paid to Artists for engineering and consulting fees, contingency 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 Artists with the original invoice (a retainer fee of up to 50%is allowed)for such services attached. g. The Construction Document Fees in an amount up to Twenty Eight Thousand, Nine Hundred Sixty- Eight Dollars and No Cents ($28,968.00) shall be paid to Artists for preparation of monument and landscaping Construction Documents and contingency in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artists 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 Artists with the "Texas Certificate of Exemption," in substantially the same form as that attached hereto as Exhibit"D"for use by Artists in the fulfillment of this Agreement. 3.4. Artists' Expenses. Artists 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 and/or Contract Manager, cost of all travel, and costs for Artists' 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 Artists 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 Artists or any agent or representative to any City or Contract Manager official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants, agreements,or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 10 of 27 dispute resolution process set forth in Article 5. If the Parties cannot resolve the dispute(s), then the disputing party shall thereupon have the right to 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 Artists pursuant to the payment provision in Article 3, and Artists shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artists under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. C. If termination is for the convenience of Artists,City shall have the right, in its sole discretion, to pay Artists pursuant to the payment provision in Article 3 or require the Artists to remit to City a sum equal to all payments (if any) made to the Artists pursuant to this Agreement prior to the effective date of termination. If City chooses to pay Artists, then all work product produced by Artists under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 2.5, then City shall pay Artists per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artists under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs,up to the effective date of termination. 4.5. Incapacity of Artists. a. In the event of Artists' deaths or Artists becoming physically or legally incapacitated during the term of this Agreement, City shall have the right to terminate this Agreement on payment to Artists or Artists' successors for all work and services performed prior to death or incapacity. All work product produced by Artists, including, but not limited to, finished and unfinished drawings, sketches, Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the I-30 Gateway Monument Project Execution Copy 8/10/15 11 of 27 photographs, models, and designs, up to the effective date of termination shall become property of City. b. Should Artists' Final Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artists' intended results and proper credit and acknowledgement shall be given to Artists. ARTICLE 5 DISPUTE RESOLUTION a. If either Artists or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach,or other matter in question that may arise out of or in connection with this Agreement. b. If the Parties fail to resolve the dispute within sixty(60)calendar days of the date of receipt of the notice of the dispute, then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing,and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except 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 Artists or pursuant to the applicable termination provision of this Agreement, the Artwork Design, Work, and all other work product under this Agreement shall Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 12 of 27 x become the property of City, without restriction on future use, except as provided below. Artists shall retain copyright and other intellectual property rights in and to the Artwork Design and Work. By execution of this Agreement, Artists grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict and publicly 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 and Work intended to promote or benefit City, its public services or its public purposes, regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City, shall be deemed a non-commercial purpose. b. In view of the intention that the Artwork Design and the Work be unique,Artists shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artists grant permission to others to do so except with the express written permission of City. However, nothing herein shall prevent Artists from creating future artworks in Artists' manner and style of Artistic expression. C. Artists reserves every right available under the Federal Copyright Act to control the making and dissemination of copies or reproductions of the Artwork Design and Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two- dimensional reproductions of the Artwork Design and Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artists and a copyright notice substantially in the following form: "©date,Artists' name." d. Nothing in this Agreement shall prevent the Artists from using images of the Artwork Design and Work for marketing and promotional purposes in connection with the Artists' businesses. e. City is not responsible for any third-party infringement of Artists' copyright and not responsible for protecting the intellectual property rights of Artists. 6.2. Artists' Address. Artists shall notify City of changes in Artists' address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artists, shall be deemed a waiver by Artists of the right subsequently to enforce these provisions that require the express approval of Artists. Notwithstanding this provision, City shall make every reasonable effort to locate Artists when matters arise relating to Artists'rights. 6.3. Artists' Acknowledgement of Agreement with TxDOT. Artists acknowledge that City and TxDOT will or have entered into a monument agreement, whereby, TxDOT must have the right to alter or remove the installed artwork located at the Site due to safety hazard concerns, in an emergency situation, or for other reasons deemed necessary. TxDOT may also alter or remove or require the City to alter or remove the installed artwork located at the Site due to construction or related TxDOT projects. Artists agree that such alteration or removal of the installed artwork from the Site is Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 13 of 27 in no way a violation of Artists' intellectual property rights. ARTISTS HEREBY WAIVE ANY INTELLECTUAL PROPERTY CLAIMS THEY MAY HAVE WHEN ALTERATIONS OR REMOVAL OF THE INSTALLED ARTWORK OCCUR UNDER THIS SECTION 6.3. ARTISTS ALSO COVENANT AND AGREE TO AND DO HEREBY INDEMNIFY,HOLD HARMLESS, AND DEFEND AT THEIR OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS FOR DAMAGES UNDER THIS SECTION 6.3. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT a. Artists represent and warrant that: i. Artwork Design and Work shall be the original product of the Artists' sole creative efforts; ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any copyright or the rights of any person; iii. Artists have not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design and Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement; iv. Artwork Design and Work(or duplicate thereof)have not been accepted for sale elsewhere; V. Artists have the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement; and vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances, etc., and with all necessary skill and care provided by the same kind and type of professional practicing in the same or similar locality under the same or similar circumstances. ARTICLE 8 ARTISTS AS INDEPENDENT CONTRACTOR Artists shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of City. Artists 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, fiduciary relationship, or joint venture between City and Artists, his/her officers, agents, employees and subcontractors, and doctrine of respondent superior has no application as between City and Artists. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 14 of 27 ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity, a. ARTISTS COVENANT AND AGREE TO AND DO HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT THEIR OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO,DEATH)TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM THE ACTS, ERRORS, OR OMMISSIONS OF ARTISTS AND/OR ARTISTS' SUBARTISTS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS,AGENTS,EMPLOYEES,DIRECTORS,MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artists agree to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artists in connection with or incidental to Artists' performance under this Agreement. C. Artists shall require all of their 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. Artists agree 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 Artists. 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 Artists without the appropriate licenses or permission being secured by Artists in advance. IT IS FURTHER AGREED THAT ARTISTS SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10115 15 of 27 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 Artists. ARTICLE 10 EQUAL OPPORTUNITY a. Artists shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artists represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artists noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artists may be debarred from further agreements with City. ARTICLE 11 MISCELLANEOUS 11.1. Compliance. Artists shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artists'services under this Agreement. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments. No alteration, change, modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. 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. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 16 of 27 11.5. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and Assigns. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artists 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 Artists,and any lawful successor or assign, and are not intended to create any rights, contractual, or otherwise, to any other person or entity. 11.8. Severability. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable,the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. 11.9. Force Majeure. It is expressly understood and agreed by the Parties to this Agreement that, if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not,the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. 11.10. Contract Construction. 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. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the I-30 Gateway Monument Project Execution Copy 8/10/15 17 of 27 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 the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of(i) thirty (30) days following delivery by City to Artists of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13. Right to Audit. Artists agree that City will have the right to audit the financial and business records of Artists 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 Artists 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. Artists shall require all of their 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 MBE/WBE. If applicable, Artists are encouraged to make their best effort to become a certified Minority Business Enterprise(MBE)or Woman Business Enterprise(WBE)firm with a certifying agency whose certification is accepted by the City under the City's Business Diversity Enterprise Ordinance. 11.15. Survival Provision. The provisions contained in Articles 4.5 (Incapacity of Artists), 6 (Ownership and Intellectual Property Rights), 7 (Warranties of Title and Copyright), 8 (Artists 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. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the I-30 Gateway Monument Project Execution Copy 8/10/15 18 of 27 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,Third Floor Fort Worth,Texas 76102 Copies to: Sarah Fullenwider,City Attorney Office of the City Attorney City of Fort Worth 1000 Throckmorton Street,Third Floor Fort Worth,Texas 76102 Martha Peters, Vice President,Public Art Arts Council of Fort Worth&Tarrant County 1300 Gendy Street Fort Worth,Texas 76107 2. ARTISTS Etty Ish-Horowitz 3717 Cole Avenue,Apartment 282 Dallas, Texas,75204 Kevin Sloan 2400 Empire Central Suite F Dallas,Texas 75235 Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10115 19 of 27 IN WITNESS HEREOF,the Parties hereto have executed this Agreement to be effective as of the Effective Date. CITY OF FORT WORTH ARTISTS A7by: Fernando Costa Etty Ish-Hwowitz Assistant City Manager Kevin Sloan APPR ED AS TO FORM AND LEGALITY: Jess ic+gsvang Assistant City Attorney ply ATTESTED Y—.. M 2 V Mary J.K*of City Secretary Contract,Authorization; M&C Date: .2 tl OFFICIAL REC011D TX Agreement between the City of Fort Worth and Efty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 20 of 27 Exhibit A: The Preliminary Design Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 21 of 27 1 1 fig? i r Z / � r 1 r if 1 i I j fJe4FtiKT 1 _J w.. SOT o'zz t Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 22 of 27 � if � � 3 i �� tE t cc 1 A � • 3 � j} �r r ell fill. ' Wall Hill Ag for Exhibit B: The Site r s� x r Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the I-30 Gateway Monument Project Execution Copy 8/10/15 24 of 27 Exhibit C: Budget Form FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this form and attach a signed receipt or estimate complete with per unit costs(no lump sums)for all items designated with an asterisk(*) 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$_per day Mileage at$_per mite INSURANCE Auto/Hired Vehicle Liability General Liability for Artist/Subcontractors Worker's Comp./Employer's Liability Other,as applicable ADMINISTRATIVE EXPENSES Phone/Fax Delivery/Shipping(for correspondence,samples,models,drawings etc) Reprographic Service Supplies PROFESSIONAL CONSULTANT FEES (If applicable,drawing must be signed and sealed by a professional registered to practice in the State of Texas) Architect* Structural Engineer* Electrical Engineer* Conservator* Photographer(for documentation of completed work)* Other* MATERIALS (Please attach a complete list of materials.Itemize all anticipated aspects and components with per unit cost estimates) Materials*Total FABRICATION COSTS (Include and itemize all portions of subcontracted work and work to be completed by artist.) Artist's Labor( hours at$_per hour)Total Subcontracted Labor*(Total) Facility/Equipment Rental(used exclusively for this project)related to fabrication SITE PREPARATION (Do not include costs covered by FWPA,City of Fort Worth or others) Test Drilling* Removal* Landscaping/Irrigation* Electrical Modifications* Water Work/Mechanical Devices Other* (Revised May 2011) Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 25 of 27 TRANSPORTATION Materials to Fabrication Site' Finished Work to Installation Site' Other' BASEMOUNTING 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/Security' 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: (Revised May 2011) Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 26 of 27 Exhibit D: Sales Tax Exemption 01 339(04c*) 09)Re1,4•tU) Texas Sales and Use Tax Exemption Certification This certificate does not require a number to be valid. Name ct purchaser,rum oro8e'ICY City of Fort worth Addrass(street dnurnber,P.O.63xorRoute number] Phono(AreaWo end numbor) 1000 Throckmorton street 617492.6325 City,Stale,ZIP Me —_-- Fort Worth,Texas 76102 I,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: Seiler All Vendors Street address: $into,ZIP codo: Description of items to be purchased or on the attached order or invo'co: 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 sales or use taxes which may become due for failure to comply with the provisions of the Tax Code andfor all applicable law. I understand that It is a criminal offense to give an exemption certificate to Ilia seller fortexable Items that I know,attho time ofpurchase, wilt bo used In a mannerotherthan that expressed in this cortificato,and depending on the amount of tax evaded,the offense may range from a Class C misdomeanor to a felony of the second degree. hereAssistant Finance Director 2126/2014 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, Sales and Use Tax"Exemption Numbers"or"Tax Exempt'Numbers do not exist. This certificate should be furnished to the supplier. Do ao send the completed certificate to the Comptroller of Public Accounts. Agreement between the City of Fort Worth and Etty Ish-Horowitz and Kevin Sloan for Final Design of the 1-30 Gateway Monument Project Execution Copy 8/10/15 27 of 27 I 8113/2015 M&C Review Olt i( a I Qe of U I e I y of �mI Wmth, I ex�I', G Fo Ri,Wo wr BFI CITY COUNCIL AENDA COUNCIL ACTION: Approved on 7/21/2015 .......... CONTINUED FROM A PREVIOUS WEEK DATE: 6/16/2015 REFERENCE C-27340 LOG NAME: 201-30 GATEWAY MONUMENT NO.: PUBLIC ART PROJECT CODE: C TYPE: NON- PUBLIC NO CONSENT HEARING: SUBJECT: Authorize Execution of a Final Design Agreement with Etty Ish-Horowitz and Kevin Sloan in an Amount Up to $90,268.00 for Final Design of the Interstate 30 Gateway Monument and a City Held Amount Up to $15,284.00 for City Project Management Costs and Contingencies for a Total Amount Up to $105,552.00 and Authorize Execution of a Monument Agreement with the Texas Department of Transportation (COUNCIL DISTRICT 5) RECOMMENDATION: It is recommended that the City Council: 1. Authorize the execution of a Final Design Agreement with Etty Ish-Horowitz and Kevin Sloan in an amount up to $90,268.00 for final design of the Interstate 30 Gateway Monument, including engineering, surveying and construction documents and a City held amount up to $15,284.00 for City project management costs and contingencies for a total amount up to $105,552.00; and 2. Authorize the execution of a Monument Agreement with the Texas Department of Transportation for the purpose of locating the Interstate 30 Gateway Monument within its right-of-way. DISCUSSION: Extending approximately 500 lineal feet, the Interstate 30 (1-30) Gateway Monument will be a welcoming landmark to the City of Fort Worth (City) that combines sculptural and landscaping components designed for viewing at freeway speeds. The project is located in the Texas Department of Transportation's (TxDOT) right-of-way. As drivers approach from the east, they will see a series of long, low, angled walls built from recycled TxDOT concrete traffic barriers that appear to emerge from the hillside and separate as the driver passes. "F 0 R T W 0 R T H"will be spelled out in statuesque steel letters, approximately eight feet in height, attached to the tops of the walls. Native wildflowers and grasses will be abundantly planted between the walls to provide a variety of color and height during the course of the annual growing cycle to reinforce Etty Ish-Horowitz's and Kevin Sloan's (Artists), "Road To The West" concept. The Artists were placed under a Preliminary Design Contract (City Secretary Contract No. 43918) dated November 27, 2012. On February 16, 2015, the Fort Worth Art Commission (FWAC) approved the preliminary design and recommended the Artists be placed under a Final Design Contract (Final Design). Under this Final Design, the Artists will finalize the aesthetic design and provide civil and structural engineering, materials testing, surveying and stamped construction documents. Upon approval of the Final Design and construction documents, the City will let the project for bidding by TxDOT-certified contractors. In 2004, City received the Texas Governor's Community Achievement Award (GCAA) from TxDOT in the amount of$265,000.00 that may only be used for construction and installation of a Monument/Landscape Project on a State of Texas right-of-way that fulfills the City's expectations and meets TxDOT's design, safety, maintenance and funding requirements. A future Mayor and Council Communication (M&C) will request authorization of a construction contract between the City and a TxDOT certified contractor to be paid for by GCAA funds in the amount of $265,000.00 and supplemented by Specially Funded Capital Projects Fund (Public Art Fund), as needed. Pursuant to a Monument Agreement between the City and TxDOT, which will allow the City to locate the Monument on TxDOT's right-of-way, the City will retain full ownership of and maintenance hftp:/Mww.fortworthgov.org/counci I_packet/m c—review.asp?ID=21072&counci I date=7/21/2015 1/3 8/1312015 M&C Review responsibilities for the monument. Funding for the Final Design of the project has been allocated from the Public Art Fund and the project was included in the Fiscal Year 2015 Annual Work Plan and Budget adopted by the Fort Worth City Council on October 14, 2014 (M&C C-27031). Fort Worth Art Commission Action: On February 16, 2015, the FWAC approved the Artists' preliminary design and recommended additional funding from the Public Art Fund for production of construction documents, materials testing, surveying, City project management costs and contingency. These additional funds are available from the Public Art Fund. Project costs and funding sources are as follows: PROJECT COST ESTIMATE AMOUNT COUNCIL AQT ION Preliminary Design $15,000.00 pppoved administratively Final Design _ $105,552 00 ]This M&C P _ Construction $349,642 00 Estimated Total FUNDING SOURCES AMOUNT TxDOT Governor's Community Achievement Award $265,000.00 C Specially Funded Capital Projects Fund (subfund 98- $205,194.00 Public Art)* Estimated Total - $470,194.00 *Public Art Fund: two percent allocated from funds included in the operating budget of the Water and Sewer Fund for cash financing of capital projects. M/WBE Office- The City's overall M/WBE goal for the Fort Worth Public Art Program is 25 percent of total capital project dollars expended on public art annually. This project is located in COUNCIL DISTRICT 5, Mapsco 67X. Council Member Gyna Bivens concurs with the Art Commission's recommendation to proceed with Final Design for the 1-30 Gateway Monument project. The project serves the entire City. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the Specially Funded Capital Projects Fund (Public Art) for the 1-30 Gateway Monument project. TO Fund/Account/Centers FROM Fund/Account/Centers 1) C291 531200 204980163933 $98,338.0 2) C291 531350 204980163930 $7,214.0 0 Submitted for City Manager's Office by., Fernando Costa (6122) Originating Department Head: Douglas W. Wiersig (7801) Additional Information Contact: Martha Peters (298-3025) http://www.fortworthgov.org/council_packet/mc review.asp?ID=21072&counciidate=7/21/2015 2/3