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HomeMy WebLinkAboutContract 47810-A1 CITY SECRETARY CONTRACT NO.. 478 ILL FIRST AMENDMENT TO FORT WORTH CITY SECRETARY CONTRACT NO. 47810 This Amendment is made between the City of Fort Worth ("City"), a municipal corporation, acting herein by and through Jesus J. Chapa, its duly authorized Assistant City Manager and Sally Weber ("Artist"), an individual, of 1237 50th Avenue, Oakland, CA 94601. 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 completed an expansion of Precinct Line Road, and the Texas Department of Transportation ("TxDOT") has replaced the Precinct Line Bridge that extends north on Precinct Line Road from the intersection with Trinity Boulevard in Council District 5 in order to provide better traffic flow and ease traffic congestion in northeast Fort Worth; WHEREAS,funding for the commission of the project has been allocated from the 2004 CIP, and the project was included in the Fort Worth Public Art Fiscal Year 2018 Annual Work Plan, adopted by the Fort Worth City Council on October 17,2017,(M&C G-19139); WHEREAS, On October 12, 2015, the Fort Worth Art Commission ("FWAC") approved Artist's Preliminary Design (City Secretary Contract #44355) for an Artwork and Artist was placed under a Final Design Agreement (City Secretary Contract-4 47810), and on July 24, 2017,the FWAC approved artist's Final Design; and recommended the Artist proceed to the commission phase of the Artwork; WHEREAS, Artist's work shall be based on the Approved Final Design, which is inspired by the history of the land and the people who have come in search of a home along the West Fork of the Trinity.The Artwork will activate a Site at the SE corner of Precinct Line Road and Trinity Boulevard, across from Waller Creek, one of the tributaries of the West Fork of the O cp�o0"t Amendment to Fort Worth City Secretary Contract No.47810 Execution copy ML RECORD C\, o�e� CITY 5&5ERARY ET. WORTH,TX Trinity. The Artwork is composed of a grouping of three simple house structures supported on piers; one structure is 17 feet high; one is 10 feet, 8 inches high; and one is 12 '/z feet high. Built of steel with a durable outdoor paint finish, two of the houses have glass panels with imagery filling the sides and/or roof of the structures, honoring a different aspect of the Precinct Line- Trinity region. The digital imagery in the glass panels is printed by a graphic process which fuses ceramic frit, a powdered glass, directly onto the tempered glass sheets that are laminated together. The structures will be illuminated at night using low-voltage LED lighting; and WHEREAS, it is the collective desire of both City and Artist to amend the Agreement to allow Artist to fabricate, install, and commission the Artwork. NOW THEREFORE, KNOWN ALL BY THESE PRESENT: Fort Worth City Secretary Contract No. 47810 is hereby amended to be effective on November 15, 2018, by: I. Amending Section 1.1 "Agreement"to delete the existing definition and replace it to read as follows: "Means and includes this Agreement between the City and Artist for Final Design and Commission of public artwork for the Site." IL Amending Section 1.3.b. "Final Design"to include Exhibit"A" attached to this Amendment and incorporated within the Agreement, and City and Artist acknowledge that it was approved by the FWAC on July 24, 2017. III. Amending Section 1.11. by deleting Exhibit"B" of the Agreement and replacing it in its entirety with Exhibit"B" attached to this Amendment and incorporating it as if copied in full. IV.Amending Article 1 to add the following definitions: a. "1.13. Final Acceptance -Means City's written acknowledgement to Artist that all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement." b. "1.14. Schedule- Means and includes a written plan of procedure for completion of fabrication, delivery, and installation of the Work, including, but not limited to, the submission of progress reports." V. Amending Article 2 to add the following: a. "2.7. Commission Scope of Services. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 2 of 32 a. Artist shall perform all services and shall furnish all supplies, materials, and equipment as necessary for fabricating, delivering, and installing the Work at the Site. 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 acceptance by City as set forth in this Agreement. The location at the Site where the Work shall be installed shall be mutually agreed upon by City and Artist. C. Artist, upon request of Contract Manager, shall provide information and/or attend meetings with appropriate City staff for purposes of risk assessment, safety review, siting of the Work, and permitting. d. Artist shall meet and coordinate with City staff and others, as necessary, to integrate the Work into the Site in terms of structural support for the Work. e. 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. f. Artist shall participate in one public education event in Fort Worth at a mutually agreed upon date and time. g. Artist shall install the Work on dates and times mutually agreed upon by Artist and City. h. Artist shall make a minimum of two trips to Fort Worth to oversee installation of and participate in the dedication of the Work. i. For the duration of this Agreement, any publicity related to the Work at any stage under this Agreement shall be coordinated through the Contract Manager. Artist must get the Contract Manager's consent, in writing, prior to engaging in publicity for the Work. 2.8. Execution of the Work. a. Artist shall furnish the Schedule to the Contract Manager within fifteen (15) business days after the Commencement Date, defined below in 2.8(b). After written approval of the Schedule by City, Artist shall fabricate, deliver, and install First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 3 of 32 the Work in accordance with such Schedule. Schedule changes may be accomplished by written agreement between Artist and City. b. Notwithstanding the above, City acknowledges that, due to the Artist's schedule, the Artist anticipates beginning the commission of the Work on or around January 2, 2019. Artist will notify contract Manager in December, 2018 of her exact date to begin commission of the Work under this Agreement, which shall be no later than January 15, 2019, and such date shall become the "Commencement Date" for purposes of providing the schedule outlined in 2.8(a) above. C. City and/or Contract Manager, upon written request, shall have the right to review the Work during its fabrication and/or request visual documentation of the fabrication. Artist shall, upon written request by the City and/or Contract Manager, provide a written progress report detailing the progress made toward completion of the Work and the remainder of work to be done to complete the Work. Artist shall comply with any request made by the City and/or Contract Manager pursuant to this Article 2.8 within thirty (30) calendar days after receipt of the written request. d. Artist shall complete the fabrication of the Work in accordance with the City-approved Final Design. Artist shall present to the Contract Manager, in writing, for further review and approval, any changes in the scope, design, color, size, material, or texture of the Work. The Contract Manager, in its discretion, shall determine whether the changes are significant and whether the changes conform to the City-approved Final Design. If the Contract Manager, in its sole discretion, determines that the changes are significant and do not conform with the City-approved Final Design, then the Contract Manager shall, in light of the Final Design, determine whether a significant change requires City approval. If the Contract Manager determines that the significant change(s) requires City approval, then the change(s) may be presented to the FWAC for review and approval at a regularly scheduled or special meeting of the FWAC. If any disputes arise thereafter, the Parties shall first attempt to resolve those disputes in First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 4 of 32 accordance with the dispute resolution process set forth in Article 5 of this Agreement. 2.9. Delivery and Installation. a. Artist shall notify City, through its Contract Manager, in writing, when fabrication of the Work is completed and ready for delivery and installation at the Site. b. Artist is responsible for installing all elements of the Work. Artist shall coordinate the installation of the Work with City and Contract Manager to ensure proper installation with the Schedule. Delivery and installation activities may not commence until written permission is delivered to Artist by the City. C. Artist shall be responsible for all costs associated with the materials, fabrication, and installation of the Work, including, but not limited to, footing, equipment rentals, lighting and electrical for lighting, and transportation and labor. d. Artist is responsible for obtaining and paying for all necessary permits through a City-approved contractor as necessary. e. Labor associated with preparing the Site to receive the Work, including bringing electricity to the site for purposes of lighting the artwork, as applicable, shall be performed by Artist or her subcontractors, and shall be done in accordance with the specifications jointly agreed to by Artist and the City. f. Artist, individually and through its subcontractors, including its fabricator, shall take all necessary precautions to protect and preserve the integrity and finish of the Site while delivering and installing the Work. If City determines, in its sole discretion, that Artist or Artist's subcontractors have damaged the Site, then City shall inform Artist, in writing, of the damage. Artist, at its own expense, shall have thirty (30) calendar days from receipt of City's written notice to repair the damage to the Site to the satisfaction of City. If Artist fails to repair the damages to the satisfaction of City within thirty (30) calendar days after receipt of the notice, or within the deadline otherwise agreed to by the parties, then City shall have the right to deduct the cost of repairs from any remaining payment due to First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 5 of 32 Artist under this Agreement, which shall be in addition to any and all other rights and remedies available to City at law or in equity. g. Upon City's request, prior to installation of the Work, Artist shall consult with a qualified art conservator and provide to the Contract Manager written instructions for appropriate maintenance and preservation of the Work on the form attached to this Amendment as Exhibit "C" (Technical and Maintenance Record). The appropriate maintenance and preservation instructions shall not be substantially different from the maintenance and preservation anticipated and conveyed to City for the Work in the final design phase for the Work. [NOTE: The written instructions provided during the final design phase of this project may fulfill all or part of this requirement to the extent that such instructions represent the final Technical and Maintenance Record]. 2.10. Post-installation. a. Within thirty (30) calendar days after the installation of the Work, Artist shall furnish Contract Manager with a set of at least of at least eight (8) high- resolution digital images (.tiff format) and eight (8) low-resolution digital images (Jpeg format) showing the Work from multiple vantage points as selected by Contract Manager, to document the Work after the Work is installed. b. Artist shall make his/her best efforts to be available at such time or times as may be agreed between City and Artist to attend any inauguration or presentation ceremonies relating to the transfer of the Work to City. City shall use its best efforts to arrange for publicity for the completed Work in such art publications and otherwise as may be determined between City and Artist as soon as practicable following installation. 2.11. Final Acceptance. a. Artist shall notify City and Contract Manager, in writing, when all services for fabrication, delivery, and installation of the Work have been completed in accordance with the terms of this Agreement. Included in such notice from Artist shall be an affidavit, attached to this Amendment as Exhibit "D" (Affidavit), certifying that all bills relating to services or supplies used in the performance of this Agreement have been paid. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 6 of 32 b. City shall notify Artist, in writing, of its Final Acceptance of the Work. C. Final Acceptance shall be effective as of the earlier to occur of(1) the date of City's notification of Final Acceptance; or, (2) the thirty-fifth (351') calendar day after Artist has sent the written notice to City required under this Article 2.11 unless City, upon receipt of such notice and prior to the expiration of the thirty- five (35) calendar day period, gives Artist written notice specifying and describing anything that has not been completed pursuant to this Agreement. 2.12. Risk of Loss. The risk of loss or damage to the Work shall be borne by Artist prior to Final Acceptance, and Artist shall take such measures as are necessary to protect the Work from loss or damage until Final Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of loss or damage shall be borne by City or its agents prior to Final Acceptance during such periods of time as the partially or wholly completed Work is in the custody, control, or supervision of City or its agents for the purposes of moving, storing, or performing any other ancillary services to the Work." VI. Amending Article 3 to add the following: "3.5. Commission Compensation. Total compensation to Artist under the commission phase of the Agreement shall be an amount up to EIGHTY FOUR THOUSAND NINE HUNDRED FORTY ONE DOLLARS AND TWENTY FIVE CENTS ($84,941.25) which shall constitute full compensation for any and all costs associated with the commission of the Artwork under this Agreement, including, but not limited to, fabrication, transportation, installation, lighting, engineering and consulting fees, remaining artist's fee, insurance, storage costs, travel expenses for two trips and services performed and materials furnished by Artist under this Agreement, and any contingencies. Artist and City may amend this Agreement to allow for additional payment if additional services are required. 3.6. Commission Payment Schedule. a. During the commission phase of the City agrees to pay Artist in the following installments set forth below, each installment to represent full and final, First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 7 of 32 non-refundable payment for all services and materials provided prior to the due date thereof. i. EIGHT THOUSAND DOLLARS AND NO CENTS ($8,000.00) upon execution of this Agreement. ii. TWELVE THOUSAND DOLLARS AND NO CENTS ($12,000.00) upon notification to Contract Manager by Artist that work on the project has commenced. iii. TWENTY THOUSAND THREE HUNDRED FIVE DOLLARS AND NO CENTS ($20,305.00) upon the Contract Manager's verification that fabrication of the Work is 25% complete. iv. TWENTY THOUSAND ONE HUNDRED SIXTY FIVE DOLLARS AND SIXTY TWO CENTS ($20,165.62) upon the Contract Manager's verification that fabrication of the Work is 50%complete. V. SEVENTEEN THOUSAND ONE HUNDRED SIXTY FIVE DOLLARS AND SIXTY THREE CENTS ($17,165.63) upon the Contract Manager's verification that fabrication of the Work is 100% complete and the Work is ready to install. vi. THREE THOUSAND SEVENTY SEVEN DOLLARS AND FIFTY CENTS ($3,077.50.) upon the Contract Manager's verification that the Work is installed. vii. TWO THOUSAND, TWO HUNDRED TWENTY SEVEN DOLLARS AND FIFTY CENTS ($2,227.50) within thirty-five (35) calendar days after Final Acceptance and receipt by City of such documentation it may require concerning payment of supplies and services rendered to Artist [see Article 2.7.]. viii. The total compensation includes payment for any unforeseen changes in engineering costs, materials, fabrication, travel over and above the $1,259.00 understood to be incorporated into the payment schedule, transportation or installation costs. City shall pay to the Artist contingency funds in an amount up to TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) for costs associated with the Work that are incurred by the Artist due to unforeseen changes in fabrication or installation costs. Such payment will be made upon (i) First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 8 of 32 receipt of supporting documentation by the Contract Manager from the Artist and (ii) approval by the Contract Manager of the additional costs. Any unused contingency funds shall remain with the City." VII. Amending Article 4 by deleting it in its entirety and replacing it with the following: "ARTICLE 4 TERM, TIME OF PERFORMANCE, 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. In the event this Agreement is canceled by the City, pursuant to this Article 4.2, City shall be entitled, in addition to any other rights and remedies,to recover from Artist a sum equal in amount to the cost incurred by Artist in providing such gratuities. 4.3. Death or 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. In the event of termination under this Article 4.3,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. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 9 of 32 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 pursuant to the payment provisions 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, designs and the Work 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 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 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, designs;the Work up to the effective date of termination shall become property of City. 4.5. Termination for Cause. a. 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 4.5 in accordance with the dispute resolution process set forth in Article 5 of this Agreement. If the Parties cannot resolve the dispute(s),then the disputing party shall thereupon have the right to terminate this Agreement upon the delivery of a written"Notice of Termination" specifying the grounds for termination. Termination of this Agreement under this Article 4.5 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. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 10 of 32 b. If City terminates this Agreement pursuant to this Article 4.5, then City shall have the right to complete the Work in accordance with the Artwork Design, which shall be in addition to any and all other rights and remedies available to City at law or in equity. If City exercises its right to complete the Work, then, notwithstanding anything to the contrary: (1) title to the Artwork Design, Work, and all other work product under this Agreement and any prior agreement for the Work, including,but not limited to, all documents, models, and drawings that constitute or are components of the Artwork Design and Work, shall pass to City and become the property of City, without restriction on future use, immediately upon the City's exercise of its right to complete the Work; (2)Artist shall forfeit any and all rights to the Artwork Design, Work, and all other work product under this Agreement and/or any prior agreement for the Work, including, but not limited to,those stated under Articles 6 (Ownership and Intellectual Property Rights) and 13 (Artist's Rights) of this Agreement; (3) Artist automatically sells, assigns, and transfers to City, the entire right, title, and interest in and to the Artwork Design, Work, and all other work product under this Agreement or any prior agreement for the Work that the Artist has under the Copyright Act of 1976, 17 U.S.C. SS 101 et. seq., and all the rights and privileges appertaining thereto, including,without limitation, the exclusive right to reproduce, prepare derivative works based upon, distribute copies to the public as well as display said Artwork Design and Work, the same to be held and employed by City for City's own benefit and use and for the benefit and use of City's successors, assigns, and legal representatives forever; (4) Artist shall have no copyright or other property interest in the Artwork Design, Work, or any other work product under this Agreement and any prior agreement for the Work; and (5)Artist, pursuant to this Article 4.5, hereby acknowledges the rights of attribution and integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it may be amended in the future) Titled "Visual Artists Rights Act,"and any other right of the same nature granted by U.S. federal, state, or foreign laws, and of First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 11 of 32 his/her own free act hereby waives such rights with respect to any and all uses of the Artwork Design, Work, and all other work product under this Agreement and/or any prior agreement as a public artwork.Nothing in this Article 4.5 shall affect the survival of Warranties, Insurance, Indemnity, Release, or Artist as an Independent Contractor contained in this Agreement, which shall remain in full force and effect upon termination of this Agreement. 4.6. Duration. The services to be required of Artist set forth in Article 2.7-2.12 shall be completed in accordance with the Schedule; provided, however, such time limits may be extended or otherwise modified by written agreement between Artist and City. 4.7. Early Completion of Artist Services. Artist shall bear any transportation and storage charges incurred from the completion of his or her services prior to the time provided in the schedule for delivery. Such expenses will not be considered a contingency expense payable under this Agreement. 4.8. Time Extensions; Force Majeure. City or Artist, as appropriate, shall grant a reasonable extension of time to the other party if conditions beyond the parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local or federal government render timely performance of the parties' services impossible or unexpectedly burdensome. The party suffering the impossibility or burdensome conditions must inform the other in writing within ten (10) days of the onset of such performance delay, specifying the reasons therefore. Failure to fulfill contractual obligations due to conditions beyond either party's reasonable control shall not be considered a breach of this Agreement; provided, however, that such obligations shall be suspended only for the duration of such conditions." VIII. Amending Article 6.2 to read as follows: "6.2. Artist's Address. Artist shall notify City of changes in the address 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 provisions of this Agreement that require First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 12 of 32 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." IX. Amending Article 6 to add the following: "6.3. Title. Title to the Work, including, but not limited to, all documents, models and/or drawings that constitute or are components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and payment for the Work or pursuant to the applicable termination provision of this Agreement. These documents, models and/or drawings will be retained for archival and exhibition purposes. Artist's Artwork Design, Work, and all other work products under this Agreement shall become the property of City,without restriction on future use, except as provided below. 6.4. Copyright Ownership. Artist retains all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole author of the Work for the duration of the copyright. 6.5. Reproduction Rights. a. 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. b. By execution of this Agreement, Artist grants to City an exclusive, perpetual, royalty free, and irrevocable license to graphically depict or 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/or the 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. Notwithstanding the above limitation, Artist agrees and understands that nothing in this paragraph shall affect or limit City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter, change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in whole or in part, the Work First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 13 of 32 when City deems it necessary within its discretion, in order to otherwise exercise City's powers and responsibility in regard to public works and improvements, in furtherance of City's operations or for any other reason. c. All reproductions by City shall contain a credit to Artist and a copyright notice substantially in the following form: "©date, Artist's name." d. Unless notified otherwise by City, Artist shall use Artist's best efforts in any public showing or resume use of reproductions to give acknowledgment to City in substantially the following form: "an original artwork commissioned by and in the public art collection of the City of Fort Worth, Texas." e. Artist may, at Artist's expense, cause to be registered with the United States Register of Copyrights, a copyright in the Work in Artist's name. f. City is not responsible for any third-party infringement of Artist's copyright and not responsible for protecting the intellectual property rights of Artist." X. Amending Article 7 to change (a)to "7.1" and adding (vii)to read as follows: "(vii) Artwork Designs and Work are free and clear of any liens from any source whatsoever." XI.Amending Article 7 to add the following: 4'7.2. Warranties of Quality and Condition. a. Artist represents and warrants that all work will be performed in accordance with professional "workmanlike" standards and free from defective or inferior materials and workmanship (including any defects consisting of "inherent vice," or qualities that cause or accelerate deterioration of the Work) for one (1) year after the date of Final Acceptance. b. Artist represents and warrants that the Work and the materials used are not currently known to be harmful to public health and safety. c. If, within one (1) year after Final Acceptance, City observes any breach of warranty described in this Article 7.2 that is curable by Artist, City shall give written notice to Artist of such breach with reasonable promptness. Artist shall, at the request of City, cure the breach satisfactorily and consistent with professional conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 14 of 32 limited to, any standards set forth by City, within thirty (30) calendar days after receipt of the written notice, at no expense to City. d. If, within one (1) year after Final Acceptance, City observes any breach of warranty described in this Article 7.2 that is not curable by Artist, Artist is responsible for reimbursing City for damages, expenses, and losses incurred by City as a result of the breach. However, if Artist disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not be deemed a breach for purposes of this Article 7.2. e. If, after one (1)year from Final Acceptance, City observes any breach of warranty described in this Section 7.2 that is curable by Artist, City shall give written notice to Artist to make or supervise repairs or restorations at a reasonable fee during Artist's lifetime. Artist shall notify City, in writing, within thirty (30) calendar days after receipt of the notice as to whether Artist will make or supervise the repairs or restorations. Should Artist fail to respond within the thirty (30) calendar day deadline or be unwilling to accept reasonable compensation under the industry standard, City may seek the services of a qualified restorative conservator and maintenance expert. f. Acceptable Standard of Display. Artist represents and warrants that: i. General routine cleaning and repair of the Work and any associated working parts and/or equipment will maintain the Work within an acceptable standard of public display. ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to experience only minor repairable damages and will not cause the Work to fall below an acceptable standard of public display. iii. With general routine cleaning and repair, in accordance with the recommendations for maintenance in Exhibit C, and within the context of foreseeable exposure to the elements and general wear and tear, the Work will not experience irreparable conditions that do not fall within an acceptable standard of public display, including, but not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading, and/or peeling. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 15 of 32 iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a manufacturer's warranty, Artist shall provide copies of such warranties to City. g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain the Work in accordance with Artist's specifications and the applicable conservation standards. If City fails to maintain the Work in good condition, Artist, in addition to other rights or remedies Artist may have in equity or at law, shall have the right to disown the Work as Artist's creation and request that all credits be removed from the Work and reproductions thereof until the Work's condition is satisfactorily repaired." XII. Amending Article 11.16 to add the following: "11.16. Insurance. Artist shall carry insurance as set out in Exhibit "F," which is attached to this Amendment and incorporated herein for all purposes. Evidence of required insurance shall be submitted to the Contract Manager prior to execution of this Agreement. Evidence of subsequent renewals of said insurance is required until City has taken possession of the Work. Except as provided otherwise in this Agreement, the risk of damage to or loss of the Work shall, during fabrication and installation but prior to Final Acceptance, shall be solely that of Artist. This risk shall transfer to City and shall no longer be the responsibility of Artist upon Final Acceptance. 11.17. Performance Bonds. Artist shall not be required by City to post any performance bonds or similar undertakings." XIII. Adding Article 13 to read as follows: "ARTICLE 13 ARTIST'S RIGHTS 13.1. Identification. The Contract Manager shall include credit to Artist on the Fort Worth Public Art website (www.fwpublicart.org) and facilitate the design, purchase, and installation of a permanent plaque at the Site. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 16 of 32 13.2. Maintenance. City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work. City shall reasonably assure that the Work is properly maintained and protected, taking into account the maintenance instructions provided by Artist in accordance with Article 2.9 and Exhibit C. 13.3. Repairs and Restoration. a. City shall have the right to determine when and if repairs and restorations to the Work will be made. During Artist's lifetime and to the extent practicable, City shall give Artist the right to approve all major repairs and restorations; provided, however, Artist shall not unreasonably withhold approval for any repair or restoration of the Work. Should Artist unreasonably withhold approval of any intended repair or restoration, City shall have the right to make such repair or restoration. To the extent practicable, Artist, during Artist's lifetime, shall be given the opportunity to make or personally supervise major repairs and restorations and shall be paid a reasonable fee for any such services, provided that City and Artist shall agree, in writing, prior to commencement of any significant repairs and restorations, upon Artist's fee for such services. Should Artist fail to agree to make or supervise the repairs and restorations, City shall have the right to choose another entity or person to assist with the restoration and/or repairs or make said repairs by City. b. All repairs and restorations shall be made in accordance with recognized conservation standards (in accordance with the American Institute of Conservation (AIC) Code of Ethics and Guidelines for Practice) and/or construction standards, including, but not limited to, the standards set forth by City. c. City may require Artist to submit professional documents supporting Artist's proposal for repairs and restorations prior to commencement of repairs or restorations. d. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to prevent risks to the public, such repairs shall be undertaken or arranged by City without advance notice to Artist, and such repairs shall not be deemed to constitute artistic alteration. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 17 of 32 13.4. Alteration of the Work or of the Site. a. City shall have the right to remove the Work by any means, including destruction, in performing maintenance, repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use. In the event that the Work is freestanding, or incorporated into a building, structure or realty such that it may be removed without damaging or destroying the Work or the building or structure, Artist shall be given written notice and ninety (90) calendar days to remove the Work at his or her sole expense. Upon Artist's failure to remove the Work, City shall have the right to remove and dispose of the Work by any means, including its destruction. b. City agrees that it will not willfully destroy, damage, or modify the work, except as provided in paragraphs a. and b. above. c. In the event the Work is substantially damaged or altered, City shall no longer represent the Work as that of Artist if Artist gives written notice to City that it is the position of Artist to deny authorship on the grounds stated in this paragraph. d. City shall, at all times, have the right to move the Work, or remove it from public display. City shall also have the right to sell or trade the Work. 13.5. Permanent Record. City shall maintain on permanent file a record of this Agreement and of the location and disposition of the Work. 13.6. Additional Rights and Remedies. Nothing contained in this Article 13 shall be construed as a limitation on such other rights and remedies available to Artist under the law, which may now or in the future be applicable. XIV. Adding Article 14 to read as follows: "ARTICLE 14 SUBCONTRACTING Artist may subcontract portions of the services to be provided hereunder at Artist's expense, provided that said subcontracting shall not adversely affect the design, appearance or visual quality of the Work and shall be carried out under the personal supervision of Artist. Any subcontract entered into under this Agreement shall be expressly subject to the terms of this Agreement. Artist shall provide information First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 18 of 32 regarding I I fabricator,- 1 _4 all subcontractors, including its fabri ator, along with a copy of the subcontract between Artist and each subcontractor to the Contract Manager.— XV. Amending Article 11,15 to require the following provision also be a survival provisions: 4.3 (Death or Incapacityof Artist}. XVI. Amending Article 12 to reflect the Citv's address is now ­200 Texas Street, Fort Worth-Texas 761021" XVII. Deleting Exhibit -,E-' of the Agreement and replacing it in its entirety with Exhibit ­E­ attached to this Amendment. All other terms, provisions, conditions, covenants and recitals of said Agreement not expressly amended herein shall remain in full force and effect. If there are any conflicts in this Amendment with anything in the Agreement, the terms and conditions of this Amendment shall control. CITYROE W T11-11 ARTIST � Jesus J.OwIla t Sal IV �her Assistant City Manas!er CONTRACT COMPLIANCE MANAGER By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring 11 performanc�and reporting requirements. 1 Name: Anne Allen Title: Public Art Project Manager APPR!*41T FORM AND EGALITY: Jessica gsvng J cU Senior A istant City AttoJ Form 1295: na ATT Ma 'KayAT-r y City Secreta`y ....XAS ........ M&C 4 n/a First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 1,'bNA L_f2E CO RD W CITY SECRETARY FT. WORTH, TX Exhibit A: The Approved Final Design House C House A House B House A - (1T high with four framed, 38"x 45" brightly colored, glass images and a four- 'sided roof peak 3'-3" high with imagery.) {IJ. �,. House A, South Panel: An enlarged detail from the 1841 map shows the Cross Timbers and "Great body of excellent land"between the "Rio Trinidad" and "West Fork".. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 20 of 32 ;a House A,North Panel: Opposite Waller Creek this panel honors the rivers which sustained life and drew people for millennia to the region. The image of blue water flows beneath a cascade of golden leaves sparkling in the light paying tribute to the life giving water that flows through this area. House A,East Panel: This panel pays homage to the rural past that still is present in the region,by depicting a field with a break of trees in the distance in remembrance of the grasslands and fields of the early homesteads. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 21 of 32 f 411 � 4 14� +k House A, West Panel: The fourth panel depicts a contemporary map of the greenbelt and its surrounding roads, communities and highways topped by an abstraction of the roofs of houses seen in passing through the neighborhood. House A, Roof Panels: Capping this structure is a four-part canopy inspired by looking up into the sky through the oak trees on the site. House B -(12 '/z'high with two roof panel glass insets 32-1/2"x 34") First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 22 of 32 This home is narrow and tall topped by two roof panels suggesting the light and hope of the rising sun. These panels will create a sense movement when seen from cars passing by. House C - (10'8" high, opened-frame structure only) The third house is left opened as an homage to all who came through this area in search of a home.A single bird sits on one of the cross beam. Inspired by a mocking bird,this sculpture suggests the witness to the passage of time and transformation of a place. The songs of mocking birds catalog the comings and goings of their environment and in this case,the sculpted bird cast in aluminum will be a tribute to all who have and will pass by. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 23 of 32 � y Exhibit B: The Site µmake+'&Mfu4r " ! �• �t j YP.eadR.atBlvd Y OCheww Roedmir.0.499 s� $'.:s+`ib' :�.' ' ._. >t�':�tx v�, L,.�+rar• `Z`j >E?,s. �,,. 4 � r ~ "� First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 24 of 32 Exhibit C: Technical and Maintenance Record GENERAL INFORMATION Artist: Address: Telephone: Cell: E-mail: Gallery Affiliation: Other Representation: ARTWORK Title of Artwork: Project Name and Location Address: FWPA Project Manager: Description of Artwork: (attach separately if necessary): Artwork Dimensions: Height: Width: Depth: Pedestal or Pad Material: Pedestal or Pad Dimensions: Height: Width: Depth: Location& Description of Signature Markings (or copyright): First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 25 of 32 Edition Information if applicable: Date of Execution: Place of Execution: Collaborating Artist: Fabricator(if other than artist) Fabricator Address: Methods/Materials Used in Execution of Artwork Materials (list type, brand name and manufacturer of all materials; attach Material Safety & Technical Data. Include contact names for all suppliers and attach warranty information): Construction Description: (list all fabricators and any architects, engineers or other technicians involved in the creation and installation of this artwork. Attach all warranties & agreements) Material(s) Specifications: Joining Methods: Welding Rod Alloy or Joint Material & Application Method: Casting Alloy, Wax Body, Glass or Fiber Type: First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 26 of 32 Finishes & Coatings (paint color and type, glaze,patina, any and all coatings including fixative, UV, graffiti, etc. Please list vendors and contact information and provide all product information): Pedestals, Foundations &Footings, Mounting and Attachment Applications (List all materials used to install artwork on site. Include vendor information,parts numbers, warranties and agreements.) Integrated Components (List all components included in design and fabrication contracts that function as a part of the final installation including but not limited to: lighting, media, landscaping, etc. Include all vendor information,parts numbers, warranties and agreements and any/all design schematics): Installation Installation Date: Installation Method: (describe installation method,provide photo documentation if available. List name and contact information of installation crew. Attach any diagrams or disassembly instructions.) Recommended Routine Maintenance First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 27 of 32 Artist recommendation based on experience and consultation with conservation expert Artist's Conservation Consultant Name: Address: Phone: (Please attach Conservator's Long Term Maintenance Recommendations) Unusual or Special Circumstances of Note Artist's Intention (Please describe your view of how the artwork will change over time and in response to environmental conditions. Artist's vision of how the artwork will look in the future assists FWPA in realizing an appropriate conservation action plan. In addition to environmental conditions public artworks are often affected by public handling, landscaping and site changes. Please clearly detail your expectations for this artwork. Please address issues related to the life expectancy of this artwork.) First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 28 of 32 Exhibit D: Affidavit AFFIDAVIT OF BILLS PAID Date: Affiant: Purchaser: Property: Affiant on oath swears that the following statement is true: Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all labor and materials provided to Affiant for the construction of any and all improvements on the property. Affiant is not indebted to any person, firm, or corporation by reason of any such construction. There are no claims pending for personal injury and/or property damages. Affiant: SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of , 201_. Notary Public, State of Texas Print Name Commission Expires First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 29 of 32 r Exhibit E: Sales Tax Exemption *V 4h3" Texas Sales and Use Tax Exemption Certification Thfs ca►ia"fe daea not f"Ubv a natter to be valid. Cft ly of Fort Wwth,Texas AOrm i'8treer SaranW.P.O.&V arawAq rAmW PfiOrR(pttFGotle end numt+ery 200 Texas Street 817-392-8360 ctY SIBMe ZlPtate Fort Worth,Texas 76102 I,the purchaser named above,claim an exemptlon from payment of sales and use lazes(for the purchase of taxable items described below or on the attached order or invoice)from: beqer, AM Vendee Sheet address: c ,State,ZIP aww- Desctiptlon of Items to be purchased at on the attached order or invoice_ AN Items. Ptaehaw aclirlowlednes that this gSq nioete carrot be used for the purchase,lease or rental of a motor vehicle_ Purchaser vamp this exemption for the blowing reason: Municipality,Governmetltel Ef ty I understand that t vAN be Fable for payment of cit stale and local sales of use texas which may boccme due far failure to comply with the provisions of the Tar Code a dfor an applicable low. J umde+rid8rtdthatR isacr5otir+af c�an99 togJYe anacenhP6or+r�9r�fo9t61u1hs�ab/sse+ns>YaNknow,attlhe tfina o1Awt:lrasa. witherssedfnamaruwoftwthanCietexptseaedhtMaca+E7Jraete,enddependengonfheamawAoftaxexadarl:lheolfenaemeYrarge from a Gass C mraberneanor to a felony of Me second degree, Doe ��n TIM here r Fhrho ee Director/t:.`FQ tlw+rl C7 NOTE: This cerbllCale cannot be Issued for the pure hass,lease,of rectal of a Motor vehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VAUD. Sales and Use Tax"Exemption Numbers'or Tax Exwnpr Numbers do not ehost. This certirk4de should be famished to the suppiler. Do=rind the oompNbed cerb'Gcats to the COMP0011e1'Of Public Accounts. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 30 of 32 Exhibit F: Insurance Requirements PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS Artist shall meet all the following insurance requirements for this Project. If Artist subcontracts fabrication, transportation, and/or installation of the Work, then Artist shall also require his/her subcontractor(s)to abide by all of the following insurance requirements. Commercial General Liability (CGL) $1,000,000 Each occurrence $2,000,000 Aggregate limit Coverage shall include, but not be limited to, the following: premises, operations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided on an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO)policy. The policy shall name City as an additional insured. Bailee's/Property (if applicable) The inland marine policy shall provide per occurrence coverage at replacement cost value based on the latest appraised value of the Artwork, which is entrusted to the Artist and is considered to be in the Artist's care, custody, and control and shall include property "in transit." Automobile Liability $1,000,000 Each accident or $250,000 Bodily Injury per person $500,000 Bodily Injury per occurrence $100,000 Property Damage A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and non-owned. For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease -per each employee $500,000 Bodily Injury/Disease -policy limit Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308— 1.01 et seq. Tex. Rev. Civ. Stat.). First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 31 of 32 GENERAL POLICY REQUIREMENTS The certificate of insurance shall include an endorsement naming the City of Fort Worth, its' Officers, Employees and Volunteers as an "Additional Insured" on all liability policies. Exception: the additional insured requirement does not apply to Workers' Compensation or Automobile policies. Artist is responsible for providing the City a thirty day (30) notice of cancellation or non-renewal of any insurance policy and may not change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. The insurers for all policies must be licensed/approved to do business in the State of Texas. If the subcontractor is an international entity and carries insurance through an international insurance company, then the subcontractor must obtain language on their certificate of insurance confirming that its insurance policy extends coverage to operations in the United States. All insurers must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. Unless otherwise stated, all required insurance shall be written on an"occurrence basis." The deductible or self-insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also approved by City's Risk Manager. City, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety days. City shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. First Amendment to Fort Worth City Secretary Contract No.47810 Execution copy 12/14/18 32 of 32