HomeMy WebLinkAboutContract 50834 CITY SECRETARY
CONTRACT NO._ �D�s4.__
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND VIRGINIA FLECK FOR TRAVEL FOR ARTIST SELECTION PANEL INTERVIEW FOR
PUBLIC ART FOR FOSTER PARK
This Agreement is entered into this 17th day of May, 2018, by and between the City of Fort Worth, a
home-rule municipal corporation of the State of Texas, acting by and through Jesus J. Chapa, its duly
authorized Assistant City Manager, and Virginia Fleck, an individual, located at
'76/Q G1904qWIWI/17_ 10'l , Austin, TX j Y_2Q 7 . City has designated the Arts Council
of Fort Worth and Tarrant County, Inc.,to manage this Agreement on its behalf. The Contract Manager shall
act through its designated Public Art project manager.
WHEREAS,pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of Ordinances,
the Fort Worth Public Art Program's goals are to create an enhanced visual environment for Fort Worth
residents, to commemorate the City's rich cultural and ethnic diversity,to integrate the design work of artists
into the development of the City's capital infrastructure improvements, and to promote tourism and economic
vitality in the City through the artistic design of public spaces;
WHEREAS, the Art Commission recommended the remaining 2% public art budget from the 2004
Bond Program(Proposition 2),$111,728.28,be utilized in Foster Park in an effort to achieve geographic equity
of public art from this funding source, in addition to the community's request for public art in this park;
WHEREAS,the project is included in the Fort Worth Public Art Fiscal Year 2018 Annual Work Plan
and Budget,which was adopted by the Fort Worth City Council on October 17, 2017, (M&C G-19139);
WHEREAS,the Foster Park Project Core Team met March 26,2018,at nearby Orchestra Hall,where
they discussed their aspirations for the project and a consensus was reached that the artwork should be relatable
to the children and youth that use the park, interactive, if possible, and have a nature or wildlife theme. Other
attributes mentioned included movement, musicality and functionality. Staff then developed the Project
Outline which was approved by the Fort Worth Art Commission("FWAC")on April 9, 2018;
WHEREAS, the FWAC is overseeing an artist selection process in accordance with the Project
Outline and the guidelines in the Fort Worth Public Art Master Plan Update;
WHEREAS, the project manager facilitated the Artist Selection Panel; the qualifications of thirteen
artists (3 from the Pre-Qualified List, 1 Emerging and 2 Established and others by invitation)were presented
to the selection panel and Project Core Team, resulting in the recommendation of three artists as finalists for
the Project;
WHEREAS, Artist has been selected as one of the finalists for the Project and is being asked to
devpresentation on their work and participate in a Site visit at 3:45 PM on Wednesday, May 30, 2018,
an cipate in an interview conducted by the Artist Selection Panel on Wednesday, May 30, 2018, at 5:30
nG� -Vb4; and
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Virginia Fleck for Travel for Artist Interviews for Public Art for Foster Park CITY SECRETARY
t Execution Copy 5130118
FT,WORTH,TX
WHEREAS, the City intends to select one Artist for the Project based on the interviews with no
guarantee that Artist will be selected to proceed to the next phase of the Project;
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 Virginia
Fleck.
1.2. Artist—Means and includes Virginia Fleck.
1.3 Artist Selection Panel—Means and includes a panel comprised of arts professionals, Project
Core Team Members, City staff representatives, City Council Member or their designee, a FWAC
representative and other Advisors as appropriate.
1.4. Contract Manager—Means and includes the Arts Council of Fort Worth and Tarrant County,
Inc., and/or its officers, directors, or employees.
1.5. City — Means and includes the City of Fort Worth, Texas and its officers, representatives,
agents, servants, and employees.
1.6. Effective Date — Means and includes the date represented in the first paragraph of this
Agreement, which shall be the official date of execution of this Agreement.
1.7. Parties—Means and includes City and Artist.
1.8. 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.
1.9. Project Core Team—Means and includes the appropriate City Council Member(s), and their
appointed community representatives and others as may be appropriate.
1.10. Project Outline—Means and includes the outline approved by the FWAC.
1.11. Site—Means Foster Park in Council District 3, connecting the South Hills neighborhood with
the trail system that runs north through Kellis Park, Overton Park and on to other sections of the Trinity River
Trail System,which is further depicted in the attached Exhibit"A."
ARTICLE 2
PURPOSE, SCOPE OF SERVICES,AND DELIVERABLES
2.1. Purpose. The purpose of this Agreement is to reimburse Artist for travel from Austin to Fort Worth
in order to participate in the artist interviews conducted by the Artist Selection Panel for this Project and
ultimately select an artist to proceed to the next phase of this Project,which may include preliminary and final
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design development and commission of artwork for the Site. The City does not guarantee that Artist will be
selected to proceed to the next phase of the Project.
2.2. Scope of Services.
a. Artist and/or members of their firm shall participate in a one hour orientation meeting(conducted via
conference call)on May 17, 2018, at 11:30 AM Central Standard Time.
b. Artist shall prepare and present a presentation demonstrating examples of their current work to the
Artist Selection Panel and be interviewed by the Artist Selection Panel in Fort Worth, Texas, on
Wednesday,May 30,2018,at 5:30 PM and shall participate in a Site visit as part of that trip,scheduled
for 3:45 PM on Wednesday, May 30, 2018. The Artist has been provided with a list of five questions
that they are expected to address during the interview and understands that additional questions may
also be posed by the Artist Selection Panel.
C. Artist shall allow video recording and photography of his/her presentation to the Artist Selection Panel.
d. Artist shall make one trip to Fort Worth, Texas for meetings and presentations as indicated above.
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. Notification of Selection.
a. The Contract Manager shall notify the Artist,by phone and in writing,of the final outcome of the artist
selection process, i.e.,whether or not the Artist was selected to proceed to the next phase of the Project,within
15 days of the FWAC's approval of the Project artist.
2.5. Alternate Artist.
a. Any artist not selected to proceed to the next phase of the Project may be designated as an alternate
for a period of two years from the date the City sends final payment to Artist under this Agreement. The Artist
shall not receive any additional compensation for such designation.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation to Artist under the Agreement shall not exceed SIX HUNDRED TWENTY DOLLARS
AND NO CENTS($620.00),which shall constitute full compensation for any and all costs associated with the
Agreement, including, but not limited to, all 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.
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3.2. Payment Schedule.
a. City shall reimburse Artist for reasonable travel expenses incurred, as approved by Project Manager,
in order to fulfill the terms of this Agreement, including: (i.) Roundtrip airfare to Dallas Fort Worth
International Airport of approximately$250.00 (copy of receipt must be furnished); (ii) one night lodging not
to exceed $163.00 (copy of receipt must be furnished); (iii.) Meals (excluding alcoholic beverages) and
incidentals (copies of receipts must be furnished OR invoiced using GSA's FY 2018 Meals and Incidental
Expenses (M&IE) Breakdown for Arlington/Fort Worth/Grapevine, Texas) not to exceed $103.00; (iv.)
Ground transportation, including (a.) Roundtrip from your home to your local airport OR roundtrip mileage
plus airport parking; (b.) Roundtrip from Dallas Fort Worth International Airport to a Fort Worth hotel; and,
(c.) Roundtrip from a Fort Worth hotel to the Orchestra Hall and Site, for a total of approximately $104.00
(copies of receipts must be furnished). Reimbursement payment will be made within thirty (30) days of the
date Artist's invoice (with copies of required receipts attached) is received by Project Manager for a total
amount not to exceed$620.00.
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`B"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.
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.
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The City may terminate this Agreement for cause in the event Artist fails to perform in accordance with the
requirements contained herein.In such event,City shall give Artist written notice of Artist's failure to perform,
giving Artist seven(7)calendar days to come into compliance with the Agreement. If Artist fails to come into
compliance with this Agreement, City shall notify Artist in writing, and this Agreement shall be terminated as
of the date of such notification. In such event,Artist shall not be entitled to any additional compensation.
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.
b. If the termination is for the convenience of City,City shall pay Artist for services actually rendered up
to the effective date of termination.
C. If termination is for the convenience of Artist, City shall have the right, in its sole discretion, to pay
Artist for services actually rendered up to the effective date of termination 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 termination.
ARTICLE 5
ARTIST AS INDEPENDENT CONTRACTOR
Artist shall perform all work and services hereunder as an independent contractor,and not as an officer,
agent, servant or employee of City.Artist shall have exclusive control of,and the exclusive right to control the
details of the work performed hereunder, and all persons performing same, and shall be solely responsible for
the acts and omissions of his/her officers, agents, employees, and subcontractors. Nothing herein shall be
construed as creating a partnership or joint venture between City and Artist,his/her officers,agents,employees
and subcontractors,and doctrine of respondent superior has no application as between City and Artist.
ARTICLE 6
INDEMNIFICATION
6.1. 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
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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 SUBARTISTS, CONTRACTORS AND
SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES,
DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE
EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF
THIS AGREEMENT.
b. Artist agrees to and shall release City from any and all liability for injury, death, damage, or loss to
persons or property sustained 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.
6.2. Intellectual Property.
Artist agrees to assume full responsibility for complying with all State and Federal Copyright Laws and any
other regulations, including, but not limited to, the assumption of any and all responsibilities for paying
royalties that are due for the use of other third party copyrighted works by Artist. City expressly assumes no
obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations.
City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by
Artist without the appropriate licenses or permission being secured by Artist in advance. IT IS FURTHER
AGREED THAT ARTIST SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS
CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR
EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO,
ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE
OR POSSESSION OF THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT
VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City
expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the
exclusive obligation of Artist.
ARTICLE 7
MISCELLANEOUS
7.1. 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.
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7.2. 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.
7.3. 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.
7.4. 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.
7.5. 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.
7.6. 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.
7.7. 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.
7.8. 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.
7.9. 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,
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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.
7.10. 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.
7.11. 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.
7.12. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part
of this Agreement.
7.13. 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 200 Texas 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 above.
7.14. 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.
7.15. Survival Provision.
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The provisions contained in Articles 5 (Ownership and Intellectual Property Rights), 6 (Warranties of Title
and Copyright), 7 (Artist as an Independent Contractor), 8 (Indemnification), and 9.13 (Right to Audit) shall
survive the termination or expiration of this Agreement.
7.16. 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.
7.17. Time Extensions.
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this Agreement.
7.17. Israel. Artist acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the
City is prohibited from entering into a contract with a company for goods or services unless the contract
contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott
Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings
ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Agreement,Artist
certifies that Artist's signature provides written verification to the City that Artist:(1)does not boycott Israel;
and(2) will not boycott Israel during the term of the Agreement.
ARTICLE 8
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: Jesus J. Chapa, Assistant City Manager
City Manager's Office
City of Fort Worth
200 Texas Street, Third Floor
Fort Worth,Texas 76102
Copies to: Sarah Fullenwider, City Attorney
Office of the City Attorney
City of Fort Worth
200 Texas Street, Third Floor
Fort Worth, Texas 76102
Martha Peters,Vice President, Public Art
Arts Council of Fort Worth&Tarrant County
1300 Gendy Street
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Fort Worth,Texas 76107
2. ARTIST Virginia Fleck
/ JdQ LAO, l A9 &vAj
Austin,TX Z 3 -70V
IN WITNESS HEREOF,the Parties hereto have executed this Agreement as of the Effective Date.
CITY OF FORT WORTH ARTIST
by:
02 )"41 4
'(7esu J. Chapa Virginia Fleck
Assistant City Manager
APPROVED AS TO FORM
AND LEGA TY:
Jessica San ng
Assistant Ci Attorney II
Form 1295:Not required
ATTESTED B ':
ary J. Ka se
City Secreta
Contract Authorization:
M&C—No M&C Required OFFICIAL RECORDCITY SECRETARY
FT.(NORTH,TX
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CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,
including ensuring all performance and reporting requirements.
�1
By:
Name: el/G
Title: /*�l/��
OFFICIAL RECORD
CITY SECRETARY
FL WORTH,TX
Exhibit A: Site
Foster Park
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Exhibit B: Sales Tax Exemption
O;;�01-339(13=k),o., (Rev.9-0716)
TEXAS SALES AND USE TAX EXEMPTION CERTIFICATION
Name of purchaser,firm or agency
City of Fort Worth,Texas
Address(Street S number,P.O.Box or Route number) Phone(Area code and number)
200 Texas Street 817-392-8360
City,State,ZIP code
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:
Seller: All Vendors
Street address: City,State,ZIP code:
Description of items to be purchased or on the attached order or invoice:
All Items except motor vehicles as listed below
Purchaser claims this exemption for the following reason:
Municipality,Governmental Entity
1 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 and/or all applicable law.
I understand that it is a criminal offense to give an exemption certificate to the seller for taxable items that 1 know,at the time of purchase,
will be used in a mannerotherthan that expressed in this certificate,and depending on the amount of tax evaded,the offense may range
from a Class C misdemeanor to a felony of the second degree.
Purchaser Title Date
here Finance Director/CFO January 3,2017
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 not send the completed certificate to the Comptroller of Public Accounts.
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