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HomeMy WebLinkAboutContract 47048 % Wit,i I i k UAVNf a re m ` AGREEMENT BETWEEN THE CITY OF FORT WORTH AND JILL BEDGOOD FOR REVISED PRELIMINARY DESIGN OF PUBLIC ART FOR THE SUMMER CREED ROUNDABOUT This Agreement is entered into this "' 3 day of , ° , 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 Jill Bedgood, an individual, located at 934 West Agarita Avenue, San Antonio, TX 78201. City has designated the Arts Council of Fort Worth and Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through its designated Public Art project manager. WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances,the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth residents,to commemorate the City's rich cultural and ethnic diversity, to integrate the design work of artists into the development of the City's capital infrastructure improvements, and to promote tourism and economic vitality in the City through the artistic design of public spaces; WHEREAS, City has designed and constructed a roundabout at the intersection of Summer Creek Boulevard and McPherson Boulevard; WHEREAS,the City has set aside funds to commission public art for the Site in the Public Art Plan for the 2008 CIP, which was adopted by the Fort Worth City Council on October 26,2010, as M&C G- 17094, and the project was included in the FY2015 Annual Work Plan and Budget, 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, Artist's Preliminary Design of five (5) large stainless steel-framed, etched and painted glass rondels featuring layered imagery related to "Prairie" and "Transportation / Technology / Communication" themes developed during the Summer Creek Corridor Public Art Workshop of March 2010, titled Presence —Absence: Layers of Identity, was developed under City Secretary Contract Number 43250; WHEREAS, on October 8, 2012, the Fort Worth Art Commission approved the Artist's Preliminary Design with a request that the Artist make adjustments to the design that impact the format and scale of the Work and its relationship to the Site in order to be more visible to motorists; WHEREAS, Artist is willing to develop a Revised Preliminary Design but requires additional compensation; WHEREAS, City and Artist wish to set out the terms and conditions under which said Work shall be designed to promote the integrity of Artist's ideas and statements as rep esente&,by.,tho Work, Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout CIT w " /2 /15 1 of 24 P 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 of Fort Worth and Jill Bedgood for a Revised Preliminary Design of public art for the Site. 1.2. Artist—Means and includes Jill Bedgood. 1.3. Artwork Design — Means and includes both the Original Preliminary Design and Revised Preliminary Design of the Work as defined below. 1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant County, Inc., and/or its officers,directors, and employees. 1.5. City—Means and includes the City of Fort Worth, Texas. 1.6. 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. Original Preliminary Design — Means all preliminary drawings, sketches, prototypes, maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist in connection with this Agreement and/or any prior agreement between Artist and City for the Work,including, but not limited to, the design concepts created pursuant to City Secretary Contract Number 43250, attached hereto as Exhibit"A"and incorporated herein for all purposes. 1.8 Parties—Means and includes City and Artist. 1.9. Project — Means and includes the capital improvement or public art development undertaking of City for which Artist's services are to be provided pursuant to this Agreement. 1.10. Project Consultant— Means and includes the design firm/professional(s) hired by City to design the Site,Dunaway&Associates. 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 Revised Preliminary Design—Means and includes those items set forth in Article 2.3 of this Agreement that Artist is required to submit to City for its review and approval. 1.13. Revised Preliminary Design Deliverables — Means and includes those items set forth in Article 2.3 of this Agreement that Artist is required to submit to City for its review and approval. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 2 of 24 t � 1.14. Site — Means and includes the roundabout located at the intersection of Summer Creek Boulevard and McPherson Boulevard, which is more particularly described in Exhibit `B," attached hereto and incorporated herein by reference for all purposes. 1.15. Work— Means and includes the finished object(s) of art and design that are the subject of this Agreement,or any intermediary stage of completion of such work. ARTICLE 2 SCOPE OF SERVICES AND DELIVERABLES 2.1. Scope of Services. a. Artist shall perform all services and will furnish all supplies, materials, and equipment as necessary for developing a Revised Preliminary Design of the Work and for providing the Revised Preliminary Design Deliverables. Services shall be performed in a professional manner and in strict compliance with all terms and conditions in this Agreement. b. Artist shall determine the artistic expression, scope, design, color, size, material, and texture of the Work, subject to review and input from stakeholders and approval by City as set forth in this Agreement. C. Artist shall revise the Original Preliminary Design to address the Fort Worth Art Commission's concerns about the scale and format in relation to the Site and visibility of the Work for motorists within the preliminary implementation budget as set forth in Article 2.4.a.v. d. Artist shall consult with engineers, fabricators, lighting specialists, as may be required, to develop the Revised Preliminary Design and insure feasibility within the budget. e. Artist shall further develop the imagery for the interior of the rondels and shall provide materials samples for the Work. f. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. g. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and permitting. h. Artist shall meet and coordinate with City staff, Project Consultants, and others, as necessary, to ensure proper integration of the Work into the Site. i. 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. j. Artist shall present the Revised Preliminary Design to Project Stakeholders for input and to the FWAC for review and approval at dates and times mutually agreed upon. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 3 of 24 k. Artist shall make a minimum of two (2) trips to Fort Worth,Texas for meetings and presentations as indicated above. Additional trips, if required per this Article, may be negotiated and agreed upon in writing by City and Artist. 2.3. 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. Revised Preliminary Design Deliverables. a. Within three (3) months after the Effective Date, Artist shall provide services and all supplies, materials, and equipment necessary to provide certain deliverables, as set forth in this Article 2.4 to City for approval. Revised Preliminary Design Deliverables shall consist of the following: i. Revised Preliminary Design illustrations showing the proposed Work from two vantage points, including a plan view, as well as illustrations of the imagery proposed for each rondel, 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; ii. A narrative description of the Artist's concept, proposed materials, fabrication, and installation methods, timeline for completion and maintenance, and anticipated annual maintenance requirements. iii. Installation diagram, including approximate weight of the Work, proposed base, footing, or attachment method(s) and, if applicable, location(s) for any electrical outlets and lighting fixtures. iv. 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. V. A preliminary budget estimate, on the budget form attached hereto as Exhibit "B," for implementation of a final design of the Artwork in an amount not exceed $208,904.00, which includes all costs for materials, labor, fabrication, delivery, installation, insurance, transportation, remaining Artist's fee, and all other associated costs for the Work, including, but not limited to,lighting and travel. 2.5. Revised Preliminary Design Review. a. Upon completion of the Revised Preliminary Design Deliverables, Artist shall present the Revised Preliminary Design to the FWAC for review and input at a regularly scheduled FWAC meeting. b. After presenting to the FWAC for initial input, Artist shall meet with the designated Project Stakeholders, City staff, and other City boards or commissions, as appropriate, to present the Revised Preliminary Design, at a date and time mutually agreed upon,for input. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 4 of 24 C. Artist shall then present the Revised 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 Revised Preliminary Design within thirty(30)business days of Artist's presentation to the FWAC. e. If City requires any revisions to the Revised Preliminary Design, then City shall inform Artist of each revision. City may require Artist to make such revisions to the Revised 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 revisions to the Revised Preliminary Design in conformance with City's requirements. g. If City disapproves of the resubmitted Revised Preliminary Design, any further Revised Preliminary Design resubmissions will be by mutual agreement of the Parties and subject to the procedures and terms in this Article. If the Parties desire not to continue with the resubmission process, then this Agreement will automatically terminate, with payment to the Artist per the payment schedule in Article 3 up through the date of termination. (See Article 4.4.d) h. Upon City approval of the Revised 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 Revised Preliminary Design presentation materials to the Contract Manager to become part of the City of Fort Worth Public Art archive owned by City. These documents, models, and/or drawings will be retained for archival and exhibition purposes. i. Upon the expiration of the Term (hereinafter defined) of this Agreement, if the Revised Preliminary Design is accepted by City and funding is appropriated by the Fort Worth City Council,negotiations for final design or final design and commission for fabrication, delivery,and installation of the Work shall commence, which shall become part of the deliverable under any anticipated final design or final design/artwork commission contract. ARTICLE 3 COMPENSATION AND PAYMENT SCHEDULE 3.1. Compensation. Total compensation to Artist under the Agreement shall not exceed TWENTY-ONE THOUSAND, EIGHT HUNDRED FIFTY-THREE DOLLARS AND NO CENTS ($21,853.00), which shall constitute full compensation for any and all costs associated with this Agreement, including Artist's fee, consulting fees, all Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 5 of 24 travel expenses and services performed and materials furnished by Artist under this Agreement. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.2. Payment Schedule. 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. SIX THOUSAND NINE HUNDRED FORTY DOLLARS AND NO CENTS ($6,940.00) upon execution of this Agreement. b. FOUR THOUSAND FOUR HUNDRED SEVENTY-ONE DOLLARS AND NO CENTS ($4,471.00) after first presentation of Revised Preliminary Design to the FWAC and receives community stakeholder input. C. FOUR THOUSAND FOUR HUNDRED SEVENTY-ONE DOLLARS AND NO CENTS ($4,471.00) within thirty (30) calendar days after Artist submits all of the Revised Preliminary Design Deliverables required under Article 2.4 of this Agreement and makes a presentation(s) of the Revised Preliminary Design to the FWAC. d. THREE THOUSAND NINE HUNDRED SEVENTY-ONE DOLLARS AND NO CENTS ($3,971.00)within thirty(30)calendar days after City's approval of the Revised Preliminary Design. e. City may pay Artist in an amount up to TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) for costs associated with preliminary consultation with engineers, fabricators and lighting designers, as may be needed, in order to fulfill the terms of this Agreement. Such payment shall be made upon receipt of an invoice from Artist with the original invoice (a retainer fee of up to 50%is allowed) for such services attached. 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's Expenses. Artist shall be responsible for the payments of all expenses incurred during the performance of this Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on submissions to City and/or Contract Manager, cost of all travel, and costs for Artist's agents, consultants, and/or employees necessary for the proper performance of the services required under this Agreement. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 6 of 24 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 official or employee with a view toward securing favorable treatment with respect to the awarding, amending, or making of any determinations with respect to this performance of this Agreement. 4.3. Termination for Cause. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms of this Agreement, or otherwise violate any of the covenants,agreements,or stipulations material to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this Article 4.3 in accordance with the dispute resolution process set forth in Article 5. If the Parties cannot resolve the 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 pursuant to the payment provision in Article 3, and Artist shall continue to provide the City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon payment in full of all monies due for services provided up to the effective date of termination, City shall have the right, in its sole discretion, to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination, provided that no right to fabricate or execute the Work shall pass to City. C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay Artist pursuant to the payment provision in Article 3 or require the Artist to remit to City a sum equal to all payments (if any) made to the Artist pursuant to this Agreement prior to the effective date of Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 7 of 24 termination. If City chooses to pay Artist, then all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models,and designs,up to the effective date of termination shall become property of City. d. If termination is by mutual agreement of the Parties as set forth in Article 2.5, then City shall pay Artist per the payment schedule in Article 3 up through the date of termination. City shall have the right to possession and transfer of all work product produced by Artist under this Agreement, including, but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs,up to the effective date of termination. 4.5. Incapacity of Artist. a. In the event that Artist becomes incapable, legally or otherwise, of performing its duties and/or obligations under this Agreement, City shall have the right to terminate this Agreement on payment to Artist or Artist's successors for all work and services performed prior to incapacity. All work product produced by Artist,including,but not limited to, finished and unfinished drawings, sketches, photographs, models, and designs, up to the effective date of termination shall become property of City. b. Should Artist's Preliminary Design have been approved, in the event of termination under this Article 4.5, City shall have the right to complete the Work, if feasible. Due regard shall be made for Artist's intended results and proper credit and acknowledgement shall be given to Artist. ARTICLE 5 DISPUTE RESOLUTION a. If either Artist or City has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the Parties shall first attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach,or other matter in question that may arise out of or in connection with this Agreement. b. If the Parties fail to resolve the dispute within sixty(60)calendar days of the date of receipt of the notice of the dispute,then the Parties shall submit the matter to mediation in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code,then in effect. Request for mediation shall be in writing,and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon Agreement of the Parties. In the event City and Artists are unable to agree to a date for the mediation or Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 8 of 24 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 parry shall have the right to exercise any and all remedies available under law regarding the dispute.(See Article 4.3) ARTICLE 6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 6.1. General. a. Upon payment in full to Artist or pursuant to the applicable termination provision of this Agreement, the Artwork Design, Work, and all other work product under this Agreement shall become the property of City, without restriction on future use, except as provided below. Artist shall retain copyright and other intellectual property rights in and to the Artwork Design and Work. By execution of this Agreement, Artist grants to the City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict or display the Artwork Design and Work for any non- commercial purpose whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork Design or Work intended to promote or benefit City, its public services or its public purposes,regardless of whether or not a fee is charged to the public, or whether revenue is otherwise received by City,shall be deemed a non-commercial purpose. b. In view of the intention that the Artwork Design and the Work be unique, Artist shall not make any additional exact duplicate reproductions of the Artwork Design or the Work, nor shall Artist grant permission to others to do so except with the express written 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 Work, except as those rights are limited by this Agreement. City may make and disseminate photographs, drawings, and other two- dimensional reproductions of the Artwork Design and Work and accompanying materials for any municipal purpose. All reproductions by the City shall contain a credit to the Artist and a copyright notice substantially in the following form: "©date, Artist's name." d. Nothing in this Agreement shall prevent the Artist from using images of the Artwork Design and/or Work for marketing and promotional purposes in connection with the Artist's business. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 9 of 24 e. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist 6.2. Artist's Address. Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so, if such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's rights. ARTICLE 7 WARRANTIES OF TITLE AND COPYRIGHT a. Artist represents and warrants that: i. Artwork Design and Work shall be the original product of the Artist's sole creative efforts. ii. Artwork Design and Work are and will be unique and original, and do not infringe upon any copyright or the rights of any person. iii. Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the Artwork Design or Work or any copyright related thereto that may affect or impair the rights granted pursuant to this Agreement. iv. Artwork Design and Work(or duplicate thereof)have not been accepted for sale elsewhere. V. Artist has the full power to enter into and perform this Agreement and to make the grant of rights contained in this Agreement. vi. All services performed hereunder shall be performed in accordance with all applicable laws, regulations, ordinances,etc.,and with all necessary care,skill and diligence. 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. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 10 of 24 ARTICLE 9 INDEMNIFICATION 9.1. General Indemnity. a. ARTIST COVENANTS AND AGREES TO AND DOES HEREBY 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 ACTS, ERRORS, OR OMMISSIONS OF ARTIST AND/OR ARTIST'S OFFICERS,AGENTS,EMPLOYEES, DIRECTORS, MEMEBERS, PARTNERS, REPRESENTATIVES, SUBARTIST AND CONTRACTORS AND ARTIST'S SUBARTISTS' AND CONTRACTORS' RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by Artist in connection with or incidental to performance under this Agreement. C. Artist shall require all of 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. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 11 of 24 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 engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Artist represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. b. In the event of Artist noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in part, and Artist may be debarred from further agreements with City. ARTICLE 11 MISCELLANEOUS 11.1. Compliance. Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations applicable to the performance of Artist's services under this Agreement. 11.2. Entire Agreement. This writing embodies the entire agreement and understanding between the Parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. 11.3. Amendments. No alteration, change,modification, or amendment of the terms of this Agreement shall be valid or effective unless made in writing and signed by both parties hereto and approved by appropriate action of City. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 12 of 24 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. Governiniz Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 11.6. Successors and Assigns. Neither party hereto shall assign, sublet, or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease, or transfer of all or any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Artist and 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. 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 Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 13 of 24 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 the City to fulfill its obligations under this Agreement, the City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to Artist of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. 11.12. Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 11.13. Right to Audit. Artist agrees that City will have the right to audit the financial and business records of Artist that relate to the Work (collectively "Records") at any time during the Term of this Agreement and for three (3) years thereafter in order to determine compliance with this Agreement. Throughout the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records available to the City at 1000 Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. 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 MBE/WBE. If applicable, Artist is encouraged to 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 the 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. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 14 of 24 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. ARTIST Jill Bedgood 934 West Agarita Avenue San Antonio,TX 78201 IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date. CIT F ORf WORTH ARTIST i 4. by: a, 1'. Z/. 7 O15 Fern ndo Costa Bedgood Assistant City Manager APPROVED AS TO FORM ,ik"LE Y: . OFFICIAIL RECORD CITY SECRET/1%11111'1'� d Jessica Sang ang il "''0p, Wo � Assistant Cio ttorney Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 15 of 24 ATTESTED BY y � a , e Cit y Secre"a yon NO M&C REQUIRED ... „ a Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 16 of 24 Exhibit"A": Original Preliminary Design Summer Creek Roundabout Presence&Absence Glass Rondels in Landscape Deep Etched Glass&Painted Glass Edge Lighting Jill Bedgood,5 July 2012 gi =a9 � ry Etched glass Painted glass Imagery to be derived from plants,animals,technology,history list derived during workshop 4 ft -- yr . r 2 fta�ng a car 6ft Glass Rondells 4 feet x 4 feet in Diameter Two Feet Above Earth Grasses underneath as well as support system and lighting system Round Hay Bales are 4 foot diameter ends Multiples in Landscape Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 17 of 24 3, r Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 18 of 24 Fort Worth,Texas;Summer Creek Roundabout,S.1.2013 Arrow sign Art about 10 feet southeast of sign, f 20 degrees . � Car %� �x y. � LtIt111Cr�rCCk -may 25 feet between art rondcls sight of ' driver AR U .. r LAST a hetson WFST � Arrow sign Arrow sign ' 2$feet between m .` SOUTH � jbedgood,5.1.2013 Arrow sign Arrow signs smaller,lower height Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 19 of 24 Presence & Absence: Layers of Identity The glass rondels' circular motif symbolizes community, a circle of human activity, continuity and connections. Imagery that references the animal and plant life of the prairie, communication and systems of transportation and technology, and the history of Summer Creek will be embedded in the layers of glass. The painted and etched images will float in front of the background of the natural prairie landscape, referencing the complexity and diversity of the citizens and land of Summer Creek. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 20 of 24 EXHIBIT "B"—Site , w a_ Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 21 of 24 Exhibit"C"—Project Budget Form FORT WORTH PUBLIC ART PROJECT BUDGET Please complete this farm 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 mile INSURANCE Auto/Hired Vehicle Liability General Liability for Artist I 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 WorkJMechanical Devices Other' (Revised May 2011) Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 22 of 24 TRANSPORTATION Materials to Fabrication Site' Finished Work to Installation Site' Other* BASUMOUNTING Base Mounting Devices and Components Foundation!Footing Other INSTALLATION COSTS (Costs must include allov.-ance 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 PolicelSecurity' 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 20f 1) Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 23 of 24 Exhibit D: Sales Tax Exemption (*S 01-3)9(beck) `w(R v.4-i3e) Texas Sates and Use Tax Exemption Certification This certificate does not require a number to be valid. Name of purdiaser,rum or agency City of Fort Worth ruMdrass(stroof d number,P,0,Box ornoufe number) — one(Area cy/o ondmmmbor) 1000 Throckmorton street 817-352.6325 CRY,State,ZIP code Fort Worth,Texas 76102 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 sales or use taxes which may become due(or failure to comply with the provisions of the Tax Code and/or all applicable low. I understand that it Is a criminal offense to give an exemption certifcale to ilia sellerfor taxable Items that lknow,at the flme of purchase, wilt bo usod in a mannerotherthan that exprossodin this certificate,and dopendingon the amount oftex evaded,die offense mayrange from a Class C misdemeanor to a felony of Ilse second degree. i'vrrfiasor Rata here` °� Assistant finance 171rector 2/2612014 NOTE: This certificate cannot be Issued for the purchase,tease,or rental of a motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TORE VALID. Sates and Use Tax"Exemption Numbers"or'Tax Exempt"Numbers do not exist. This certificate should be furnished to the supplier. Do no send the completed certificate to the Comptroller of Public Accounts. Agreement Between the City of Fort Worth and Jill Bedgood for Revised Preliminary Design of Public Art for the Summer Creek Roundabout Execution Copy 9/21/15 24 of 24