HomeMy WebLinkAboutContract 35230Cf�� Y �ECRETARY
�QNT�iACT N� .
AGREEMENT FOR FINAL DESIGN AND COMNIISSION
OF PUBLIC ART WORK
AGREEMENT BETWEEN THE CITY OF FORT WORTH AND
R.EBECCA LOW AND JAMES B. LOW, A GENERAL PARTNERSHIP,
DBA REBECCA LOW SCULPTURAL METAL GALLERY & STUDIO
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This Agreement, entered into this , ay of , 2007,
by and between the CITY OF FORT WORTH, a home rule municipal corporation of the
State of Texas (the "City"), acting by and through Libby Watson, its duly authorized
Assistant City Manager and REBECCA LOW AND JAIVIES B. LOW, A GENERAL
PARTNERSHIP, DBA REBECCA LOW SCULPTURAL METAL GALLERY &
STUDIO, (the "Artist"). The City has designated. the ARTS COLTNCIL OF FORT
WORTH & TARRANT COLTNTY, Inc., (the "Contract Manager") to manage this
AGREEMENT on its behalf. The Contract Manager shall act through Jennifer Loworn,
its designated Public Art Project Manager.
WI�EREAS, funds for a public art project at City Hall located at 1000
Throckmorton, Fort Worth, TX, more particularly described as the wall behind the Dias
in the City Council Chambers in Exhibit "A" hereto (the "Site"), have been allocated
from the Public Art Fund of the Specially Funded Capital Projects Fund for the design
and placement of works of art at, in or near said Site; and,
WHEREAS, the Artist was selected by the City through a selection process
conducted through the Contract Manager and recommended by the Mayor and a
subcommittee to commission a unique, hand-tooled copper wall-mounted sculpture
inspired by "Miss Molly," the mascot and logo of the City of Fort Worth, which shall
include the words "Fort Worth" and associated lighting (the "Work"); and,
WHEREAS, City and Artist wish to set out the terms and conditions under which
said Work shall be designed in order to promote the integrity of Artist's ideas and
statements as represented by the Proposal.
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:
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ARTICLE 1
SCOPE OF SERVICES
1.1. General.
a. The Artist shall perform all design and fabrication services
and/or select a qualified, experienced fabricator and will furnish all
supplies, materials, and equipment as necessary for the transportatior� and
installation of tha Work at the Site, as set forth in Section 1.4. Services
shall be performed in a professional manner and in strict compliance with
all terms and conditions in this Agreement.
b. The 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 in which the Work shall be installed has been mutually agreed upon
by the City and the Artist.
c. The Artist shall present the final design to City ofiicials and
community stakeholders as required.
d. The Artist shall provide a drawing detailing the method of
aitachment of the Work to the Site for t•eview and approval by the City.
e. The Artist shall install the Work on dates and at times
mutually agreed upon by the Ai�tist and the City.
f. The Artist shall provide and install fiber optic backlighting
and track mounted spot lighting for the artwork.
g. The Artist shall participate in one public education event in
Fort Worth at a mutually agreed upon date and time.
1.2. Proposal Selection.
City and Artist acknowledge that the Artist's conceptual design (the
"Proposal"), attached hereto as Exhibit "B," has been reviewed and
approved by the Fort Worth City Council as the basis for executing this
Agreement with the Artist.
1.3. Final Design Phase and Review
a. The Artist shall meet with the Mayor and his committee to
receive input regarding the Work as required.
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b. City may require Artist to make such revisions to the Final
Design as are necessary for the Artwork to comply with applicable
statutes, ordinances or regulations of any governmental regulatory agency
having jurisdiction over the Site for reasons of safety and security.
c. City may request revisions to the Final Design for other
practical, non-aesthetic, reasons.
d. Within thirty (30) days of its receipt of Artist's submission
of the Final Design, City shall notify the Artist of its approval or
disapproval of such submission and of each revision made in the Proposal.
Revisions made pursuant to this Section 1.3, upon approval by City, shall
become part of the Final Design.
e. If the Final Design or any required revision is disapproved
by City, Artist shall have thirty (30) days to resubmit the Final Design in
conformance with City's requirement.
£ If resubmitted materials are not appxoved by City, this
Agreement may be terminated at City's optian, with payment for work
completed per the payment schedule in Section 2.1.
1.4. Execution of the Work
a. Upon execution of this Agreement, Artist shall promptly
furnish to the City a schedule for the completion of the fabrication of the
Work, including a schedule for the submission of progress reports, and
engineered drawings as required. After written approval of the schedule
by the City, the Artist shall oversee the fabrication, transportation and
installation of the Work in accordance with such schedule. Schedule
changes may be accomplished by written agreement between the Artist
and the City.
b. The City shall have the right to review the Work at
reasonable times during its fabrication. Artist shall, upon written request
by City, provide City with 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.
c. The Artist shall complete the fabrication of the Work in
substantial conformity with the Proposal. However, Artist may present to
the Ciry, in writing for further review and approval, any significant
changes in the scope, design, color, size, material, or texture of the Work
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not in substantial conformity with the Proposal. The Contract Manager
shall, in light of the Proposal, determine whether a significant change
requires City approval.
1.5. Delivery and Installation.
a. The Artist shall notify the City, through its Contract
Manager, in writing when fabrication of the Work is completed and ready
for its delivery and installation at the Site.
b. The Artist shall deliver and install the completed Work at
the Site in compliance with the schedule approved pursuant to Section 1.4;
provided, however, that delivery and installation activities may not
commence until wr-itten permission is delivered to the Artist by the
Contract Manager.
c. City shall not be responsible for labor and equipment or
costs associated therewith to prepare the Site for the installation of the
Work.
d. The Artist, individually and through its subcontractors,
including its fabricator, shall take all necessary precautions to protect and
presezve the integrity and finish of the Site while delivering and installing
the Work. The Artist shall repair any damage to the Site due to delivery,
installation, or Artist's negligence or the negligence of Artist's
subcontractors.
e. Prior to installation of the Work, Artist shall provide to
City written instructions for appropriate maintenance and preservation of
the Work on the form attached hereto as Exhibit "E". 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 proposal for the Work.
1.6. Post-installation.
a. Within thirty (30) days after the installation of the Work,
Artist shall furnish City with an original set of high resolution digital files
and jpegs showing Work from at least two points of view, as selected by
Contract Manager to document the project after the Work is installed.
b. The Artist shall be available at such time or times as may
be agreed between the City and the Artist to attend any inauguration or
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presentation ceremonies relating to the transfer of the Work to the City.
The 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 the City and the Artist as soon as practicable following
installation.
1.7. Final Acceptance.
a. The Artist shall advise the City in writing when all services
required have been completed in substantial conformity with the Proposal.
Included in such notice from the Artist shall be an affidavit certifying that
all bills relating to services or supplies used in the performance of this
Agreement have been paid.
b. The City shall notify the Artist in writing of its final
acceptance of the Work ("Final Acceptance").
c. Final Acceptance shall be effective as of the earlier to occur
of (1) the date of the City's notiiication of Final Acceptance; or, (2) the
35th day after the Artist has sent the written notice to the City required
under Section 1.7.a unless the City, upon receipt of such notice and prior
to the expiration of the 35-day pei7od, gives the Artist written notice
specifying and describing the services which have not been completed.
1.8. Risk of Loss
The i-isk of loss or damage to the Work shall be borne by the Artist prior to Final
Acceptance, and the 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 the City
prior to Final Acceptance during such periods of time as the partially or wholly completed
Work is in the custody, control or supervision of the City or its agents for the purposes of
moving, storing, or performing any other ancillary services to the Work.
2.1. Fee.
ARTICLE 2
COMPENSATION AND PAYMENT SCHEDULE
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The City shall pay the Artist a fee not to exceed TWENTY THItEE THOUSAND
EIGHT HUNDRED ONE DOLLARS AND NO CENTS ($23,801) (collectivelv, the
"Fee" which shall constitute full compensation for all services to be performed and
materials to be furnished by the Artist under this Agreement, inclusive of conceptual
design, final design, fabrication, transportation, installation, oversight of fabrication and
installation, insurance, incidental costs, and all travel expenses.
(a) Fifty_percent (50%) upon full execution of this Agreement.
(b) Twen five percent (25%) upon the Project Manager's verification
that the Artwork is 75% complete.
{c) Twenty five percent (25%) within thirty-five (35) days after Final
Acceptance and receipt by City of such documentation it may
require concerning payment of supplies and services rendered to
the Artist [see Section 1.6 (a)]; provided, however, that final
deliveiy shall not be tendered prior to the expiration of thirty (30)
days after Final Acceptance.
2.2. Sales Taxes.
The City is a tax-exempt organization and no state or local sales t�es or federal excise
t�es shall be due upon the Project. The City shall supply the Artist with the "Texas
Sa1es Tax and Local Sales Tax Exemption Certificate," in substantially the same form as
that attached hereto and incorporated herein as E�iibit "C" for use by Artist in the
fulfillment of this Agreement.
23. Artist's Expenses.
Artist shall be responsible for the payments of all expenses incurred during the
perfoimance of this Agreement, including but not limited to services, materials,
mailing/shipping charges and insurance on submissions to the City, cost of all travel,
insurance and costs for Artist's agents, consultants, and/or employees necessary for the
proper performance of the services required under this Agreement.
3.1. Term.
ARTICLE 3
TERM AND TIME OF PERFORMANCE
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This Agreement shall be in effect from the date stated in the first paragraph of this
Agreement, and, unless terminated earlier pursuant to such provisions in this Agreement,
shall extend until fmal payment to Artist by City, whichever is later.
3.2. Duration.
The seivices to be required of the Artist set forth in Ai�ticle 1 shall be completed in
accordance with the schedule for completion of the Work as proposed by the Artist and
approved by the City pursuant to Section 1.4.a.; provided, however, such time limits may
be extended or otherwise modified by written agreement between the Artist and the City.
3.3. Earlv Completion of Artist Services.
The Artist shall bear any nansportation and storage charges incut�red from the completion
of his or her services prior to the time provided in the schedule for delivery.
3.4. Time Extensions; Force Majeure.
The City or the 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
suffaring 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.
ARTICLE 4
WARRANTIES
4.1 Warranties of Title.
The Artist represents and wanants that:
(a) the Work shall be the original product of the Artist's sole creative efforts.
(b) the Work is and will be unique and original, and does not infringe upon any
copyright or the rights of any person;
(c) the Work (or duplicate thereo� has not been accepted for sale elsewhere;
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(d) the Artist has not sold, assigned, transferred, licensed, granted, encumbered or
utilized the Work or any element thereof or any copyright related thereto
which may affect or impair the rights granted pursuant to this Agreement;
(e) the Work is free and clear of any liens fiom any source whatsoever;
(� the Artist has the full power to enter into and perform this Agreement and to
make the grant of rights contained in this Agreement;
(g) all services performed hereunder shall be performed in accordance with all
applicable laws, regulations, ordinances, etc., and with all necessary care, skill
and diligence;
(h) the Artist shall assume the defense of, and INDEMIVIFY AND HOLD
HARMLESS, THE CITY, ITS OFFIC�RS, EMPLOYEES, AGENTS,
AND CONTRACTORS FROM AND AGAINST ALL CLAIMS,
LOSSES, DAMAGES, ACTIONS OR EXP�NSES OF EVERY TYPE
AND DESCRIPTION, INCLUDING ATTQRNEY'S FEES, TO WHICH
THEY MAY BE SUBJECTED ARISING OUT OF THE CITY'S USE
OR POSSESSION OF THE WORK BY REASON OF AN ALLEGED
OR ACTUAL COPYRIGHT VIOLATI�N OR OTHER LACK OF
pWNERSffiP, AUTHORSHIP, OR ORIGINALITY.
4.2 Warranties of Qualitv and Condition
(a) Artist represents and warrants that a11 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
year after the date of Final Acceptance.
(b) Artist represents and wai�rants that the Work and the materials used are not
currently known to be harinfiil to public health and safety.
(c) If within one year City obseives any breach of warranty described in this
Section 4.2 that is curable by the Artist, the Artist shall, at the request of the
City, cure the breach promptly, satisfactorily and consistent with professional
conservation standards, at no expense to CiYy. City shall give notice to Artist
of such breach with reasonable promptness.
(d) If after one year City observes any breach of warranty described in this Section
4.2 that is curable by the Artist, City shall contact the Artist to make or
supervise repairs or restorations at a reasanable fee during Artist's lifetime.
Artist shall have the right of %rst refusal to make or supervise repairs or
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restorations. Should Artist be unavailable or unwilling to accept reasonable
compensation under the industry standard, City may seek the services of a
qualified restorative conservator and maintenance expert.
If within one year City observes any breach of warranty described in this
Section 4.2 that is not curable by the Artist, Artist is responsible for
reimbursing City for damages, expenses and loss 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 Section 4.2.
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 r•epairable damages and will
not cause the Work to fall below an acceptable standard of public
display.
iii. With general routine cleaning and repair, 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 mold, rust,
fracturing, staining, chipping, tearing, abrading and peeling.
iv. Manufacturer's Warranties. To th� extent the Work incorporates
products covered by a manufacturer's wat�ranty, Artist shall provide
copies of such warranties to City.
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 faiis to maintain the Work in good
condition, Artist, in addition to other rights or remedies the Artist may have in
equity or at law, shall have the right to disown the Work as the Artist's creation
and request that all credits be removed from the Work and reproductions thereof
until the Work's condition is satisfactorily repaired.
4.3 These representations and warranties shall survive the termination or other
extinction of this Agreement.
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ARTICLE 5
INSURANCE AND INDEMNITY
5.1. General.
The Artist shall carry insurance as set out in Exhibit "D".
Except as provided in Section 1.8 hereof, 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 the
Artist. This risk shall transfer to the City and shall no longer be the responsibiliry of the
Artist upon Final Acceptance.
5.2. Performance Bonds.
The Artist shall not be required by the City to post any performance bonds or similar
undertakings, and any requirement of any other authority for performance bonds shall be
the responsibility of the City.
5.3 Indemnity.
(a) ARTIST COVENANTS AND AGREE5 TO INDEMNIFY, HOLD
HARMLESS AND DEFEND, AT ITS OWN EXPENSE, CITY AND ITS OFFICERS,
AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL
CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR PERSONAL
iNJURY, INCLUDING DEATH, TO ANYAND ALL PERSONS, OF WHATSOEVER
KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF
OR IN CONNECTION WITH THE EXECUTI�N, PERFORMANCE, ATTEMPTED
PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR
THE OPERATIONS, ACTIVITIES AND SERVICES OF THE PROGRAM
DESCRIBED HERElN, WHETHER OR NOT CAUSED, IN WHOLE OR IN
PART, BY ALLEGED NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS,
EMPLOYEES, CONTRACTORS OR SU$CONTRACTORS OF CITY; AND
ARTIST HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY OF CITY
AND ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FOR ANY AND
ALL CLAIMS OR SUITS FOR PROPERTY LOSS OR DAMAGE AND/OR
PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF
WHATSOEVER KINDS OR CHARACTER, WHETHER REAL OR ASSERTED,
ARISING OUT OF OR 1N CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE OR NON-PERFORMANCE OF
THIS CONTRACT AND AGREEMENT AND/OR THE OPERATIONS,
ACTIVITIES AND SERVICES OF THE PROGRAMS DESCRIBED HEREIN,
WHETHER OR NOT CAUSED IN WHOLE OR IN PART, BY ALLEGED
NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS OR SUBCONTRACTORS OF CITY. ARTIST LIKEWISE
COVENANTS AND AGREES TO AND DOES HEREBY 1NDEMNIFY AND HOLD
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HARMLESS CITY FROM AND AGAINST ANY AND ALL INJURY, DAMAGE OR
DESTRUCTION OF PROPERTY OF CITY, ARISING OUT OF OR 1N
CONNECTION WITH ALL ACTS OR OMISSIONS OF ARTIST, ITS OFFICERS,
MEMBERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES,
LICENSEES, OR PROGRAM PARTICIPANTS, WHETHER OR NOT CAUSED
IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS OR
SUBCONTRACTORS OF CITY.
(b) ARTIST AGREES TO AND SHALL RELEASE CITY, ITS AGENTS,
EMPLOYEES, OFFICERS AND LEGAL REPRESENTATIVES FROM ALL
LIABILITY FOR 1NJiJRY, DEATH, DAMAGE OR LOSS TO PERSONS OR
PROPERTY SUSTAINED IN CONNECTION WITH OR 1NCIDENTAL TO
PERFORMANCE UNDER THIS AGREEMENT, EVEN IF THE INJURY, DEATH,
DAMAGE OR LOSS IS CAUSED BY CITY'S SOLE OR CONCURRENT
NEGLIGENCE.
(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.
(d) This indemnification shall survive the termination or expiration of this
Agreement.
ARTICLE 6
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1. Title.
Title to the Work, including all documents and/or drawings which constitute or are
components of the Preliminary Proposal and the Final Design, shall pass to City upon
Final Acceptance and payment for the Work. These documents and/or drawings will be
retained for archival and e�ibition purposes. Artist's Final Design and all other work
products under this Agreement shall become the property of City, without restriction on
future use, except as provided below.
6.2 Capyri�ht 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.
6.3 Reproduction Ri�hts.
(a) In view of the intention that the final Work be unique, Artist shall not make
any additional exact duplicate reproductions of the final Work, nor shall Artist
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grant permission to others to do so except with the express written permission
of City. However•, nothing herein shall prevent the Artist from creating future
artworks in the Artist's manner and style of artistic expression.
(b) By execution of this Agreement, Artist grants to City a perpetual, irrevocable
license to graphically depict or display the Work for any non-commercial
purpose whatsoever; for purposes of this limitation, any graphic depiction or
display of 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, destray, remove, move, replace, operate, maintain, transport,
sell or transfer, in whole or in part, the Work when City deems it necessary
within its discretion, in order to otherwise exercise City's powers and
responsibility in regard to public works and impravements, 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 natice
substantially in the following form: "� date, Ai�tist's name."
(d) 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 Ciry of Fort Worth, Texas."
(e) Artist shall, at Artist's expense, cause to be registered with the United States
Register of Copyrights, a copyright in the Work in the Artist's name.
(� City is not responsible for any third party infringement of Artist's copyright
and not responsible for protecting the intellectual property rights of Artist.
ARTICLE 7
ARTIST'S RIGHTS
7.1. Identification.
The Contract Manager shall include credit to the Artist on the Fort Worth Public Art
website (w������.fwpublicart.org) and a permanent plaque at the site.
7.2. Maintenance.
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The City recognizes that maintenance of the Work on a regular basis is essential to the
integrity of the Work. The City shall reasonably assure that the Work is properly
maintained and protected, taking into account the maintenance instructions provided by
Artist in accordance with Section 1.4 and Exhibit "E", Technical and Maintenance
Record.
7.3. Repairs and Restoration.
a. The City shall have the right to determine when and if
repairs and restorations to the Work will be made. During the Artist's
lifetime and to the extent practicable, the City shall give the Artist the right
to approve all major repairs and restorations; provided, however, the Artist
shall not unreasonably withhold approval for any repair or restoration of
the Work. Should Artist unreasonably withhold approval of any intended
major repair or restoration, the City shall have the right to make such
repair or restoration. To the extent practicable, the Artist, during the
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 the Ciry and the Artist shall agree in
writing, prior to commencement of any significant repairs and restorations,
upon the Artist's fee for such services. Should the Artist fail to agree to
make or supervise the repairs and restorations, the City shall have the right
to choose another entity or person to assist with the restoration and/or
repairs or make said repairs by the City.
b. All repairs and restorations shall be made in accoi•dance
with recognized principles of conservation.
c. When emergency repairs are necessary in order to prevent
the loss of or further damage to the Work, such repairs shall be undertaken
or arranged by Gity without advance notice to Airtist, and such repairs shall
not be deemed to constitute artistic alteration.
7.4. Alteration of the Work or of the Site.
a. In the event that the Work is incorporated into a building,
structure or realty, the installation of the Work may subject it to
destruction, distortion, mutilation or other modification by reason of its
removal. If removal of the Work would damage either the Work or the
Site, the City shall have the right to remove the Work by any means,
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including destruction, in performing maintenance, repair, renovation, or
reconstruction of the building, structure or in devoting realty to a new use.
b. 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, the Artist
may be given written notice and 90 days to remove the Work at his or her
sole expense. Upon Artist's failure to remove the Work, the City shall
have the right to remove and dispose of the Work by any means, including
its destruction.
c. The City agrees that it will not willfully destroy, damage, or
modify the work, except as provided in paragraphs a. and b. above.
d. In the event the Work is substantially damaged or altered,
the City shall no longer represent the Work as that of the Artist if the
Artist gives written notice to the City that it is the position of the Artist to
deny authorship on the grounds stated in this paragraph.
e. The City shall at all times have the right to move the Work,
or remove it from public display. The City shall also have the right to sell
or trade the Work.
7.5. Permanent Record.
The City shall maintain on permanent file a record of this Agreement and of the location
and disposition of the Work.
'7.6. Artist's Address.
The Artist shall notify the City of changes in the address set forth in Article 13. The
failure to do so, if such failure prevents the City from locating the Artist, shall be deemed
a waiver by the Artist of the right subsequently to enforce these provisions of Article 7
that require the �xpress approval of the Artist. Notwithstanding this provision, the City
shall make every reasonable effort to locate the Artist when matters arise relating to the
Artist's rights.
7.7. Additianal Ri�ts and Remedies.
Nothing contained in this Article 7 shall be construed as a limitation on such other rights
and remedies available to the Artist under the law, which may now or in the future be
applicable.
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ARTICLE 8
ARTIST AS AN 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. Ai-tist 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 ba construed
as creating a partnership or joint venture between City and Artist, his/her officers, agents,
employees and subcontractors, and doctrine of respondeat superior has no application as
between City and Artist.
ARTICLE 9
SUBCONTRACTING
The Artist may subcontract portions of the services to be provided hereunder at the
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 the Artist. Any subcontract entered into under this Agreement shall be
expressly subject to the terms of this Agreement. Artist shall provide information
regarding all subcontractors, including its fabricator, along with a copy of the subcontract
between Artist and each subcontractor.
ARTICLE 10
TERMINATION
10,1. Gratuities.
The City may cancel this Agreement if it is found that gratuities in the form of
entei�tainment, gifts or otherwise were offered or given by the Artist or any agent or
representative to any City 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 perfarmance of this Agreement. In the event this Agreement is canceled by
the City, pursuant to this Section 10.1, the City shall be entitled, in addition to any other
rights and remedies, to recover from the Artist a sum equal in amount to the cost incurred
by the Artist in providing such gratuities.
15
10.2. Termination for Cause.
If either party to this Agreement shall willfully or negligently fail to fulfill in a timely and
proper manner, or otherwise violate, any of the covenants, agreements or stipulations
material to this Agreement, the other party shall thereupon have the right to terminate this
Agreement by giving written notice to the defaulting party of the intent to terminate
specifying the grounds for termination. The defaulting party shall have thirty (30) days
after receipt of the notice to cure the default. If it is not cured, then this Agreement shall
terminate. 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
oi this Agreement.
10.3. Termination for Convenience.
a. The services to be perfoimed under this Agreement may be
terminated by either party, subject to written notice submitted thirry (30)
days before termination. The notice shall specify whether the termination
is for convenience or cause.
b. If the termination is for the convenience of the City, the
A�tist shall have the right to an equitable adjustment in the fee (without
allowance for anticipated profit on unperformed services), in which event
the City shall have the right at its discretion to possession and transfer of
title to the sketches, designs and models already prepared and submitted or
presented for submission to the City by the Artist under this Agreement
prior to the date of termination, provided that no right to fabricate or
execute the Work shall pass to the City.
c. If termination is for the convenience of the Artist, the Artist
shall remit to the City a sum equal to all payments (if any) made to the
Artist pursuant to this Agreemant prior to termination.
10.4. Incapacitv of Artist.
a. In the event of Artist's death or Artist becoming physically
or legally incapacitated during the term of this Agreement, the 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 death or incapacity.
All finished and unfinished drawings, sketches, photographs, models and
work shall become property of the City.
16
b. Should Artist's design have been approved or if the Artist's
work has progressed to the point of fabrication of the Work, in the event of
termination under this Section 10.4, the City shall have the right to
complete the Work. Due regard shall be made for Artist's intended results
and proper credit and acknowledgement shall be given to Artist.
ARTICLE 11
EQUAL OPPORTUNITY
a. The Artist shall not discriminate against any employee or
applicant for employment because of disability, familial status, race, color,
religion, sex, sexual orientation, or national origin. The Artist shall take
affirmative action to ensure that employees are treated equally during
employment, without regard to their disability, familial status, race, color,
religion, sex, sexual orientation and national origin. Such action shall
include but not be limited to the following: Employment, upgrading,
demotion, transfer, recruitment or pay or other forms of compensations,
and selection for training, including apprenticeship.
b. The Artist sha11 state in all solicitation or advertisements
for employment placed by or on behalf of the Artist that all qualified
applicants shall receive consideration for employment without regard to
disability, familial status, race, color, religion, sex, sexual orientation, or
national origin.
c. The Artist shall furnish all information and reports
requested by the City of Fort Worth, and shall permit access to its books,
records, and accounts for purposes of investigation to ascertain compliance
with such rules and regulations.
d. In the event of the Artist's noncompliance with the
nondiscrimination clauses of this Agreement, this Agreement may be
canceled, terminated, or suspended in whole or in part, and the Artist may
be debarred from further agreements with the City of Fort Worth.
ARTICLE 12
MISCELLANEOUS
12.1. Compliance.
The Artist shall be required to comply with Federal, State and City statutes, ordinances
and regulations application to the performance of the Artist services under this
Agreement.
12.2 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.
12.3. Amendments.
No alteration, change, modification or amendment of the terms of this Agreement shall be
valid or effective unless made in writing and signed by both parties hereto and approved
by appropriate action of the City.
12.4. 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.
12.5. Governin� aw and Venue.
Tlus Agreement, regardless of where executed or performed, shall be governed by and
conshued in accordance with the laws of the State of Texas. Venue for any litigation
arising from this Agreement shall be in Tarrant County, Texas.
12.6. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the Ciiy and the
Artist and their respective successors and assigns.
12.7. No Third-Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of the City and
the Artist, and any lawful successor or assign, and are not intended to create any rights,
contractual or otherwise, to any other persan or entity.
12.8. Severability.
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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.
12.9. 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.
12.10. Fiscal Funding Out•
If for any reason at any time during any term of this Agreement the 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 the City to the Artist of written notice of the City's intention to
terminate or (ii) the last date for which funding has been appropriated by the City Council
for the purposes set forth in this Agreement.
12.11. Captions.
Captions and headings used in this Agreement are far reference puiposes only and shall
not be deemed a part of this Agreement.
12.12. Artist's Address.
Artist shall notify the Contract Manager of changes in address.
12.13. Survivin� Covenants.
The covenants and obligations set forth in this Agreement shall not survive the death or
legal incapacity of the Artist.
1214. Ri�ht to Audit.
The Artist agrees that the City will have the right to audit the financial and business
records of the 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 on 1000
Throckmorton Street, Fort Worth, Texas or at another location in the City acceptable to
fL•:
both parties following reasonable advance notice by the City and shall otherwise
cooperate fully with the Ciry during any audit. Notwithstanding anything to the contra�y
herein, this Section 8.16 shall survive expiration or earlier termination of this Agreement.
12.1 S. Certified MWBE.
If applicable, Artist shall make its best effort to become a certified Minority/Women
Business Enteiprise (M/WBE) firm with a cei�tifying agency whose certification is
accepted by the City under the City's M/WBE ordinance.
ARTICLE 13
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:
20
1. CITY OF FORT WORTH: Libby Watson, Assistant City Manager
City Manager's Office
City of Fort Worth
1000 Throckmorton Street
Fort Worth, TX 76102
Copies to: David Yett, City Attorney
Law Department
1000 Throckmorton Street
Fort Worth, TX 76102
Martha Peters, Public Art Director
Arts Council of Fort Worth & Tarrant County
13�0 Gendy Street
Fort Worth, TX 76107
2. ARTIST Rebecca Low and James B Low, dba
Rebecca Low Sculptural Metal Gallery & Studio
7608 Camp Bowie West (Spur 580)
Fort Worth, TX 76116
[SIGNATURES APPEAR ON FOLLOWING PAGE.]
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IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the latest
date below.
APBROVED S T,O FORM:
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Assistant City Attorney
Date: j
Contract Authorization:
M&C # C-22018
Date: March 20, 2007
CITY OF FORT WORTH
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Libby Watson � '
Assistant City Manager
Date: " � �� � � `' �
ARTIST
Rebecca Low and James B. Low,
a General Partnership dba
Rebecca Low Sculptural Metal Gallery &
Studin
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Rebecca Low
Date: � L'
ATTESTED BY:
Marty Hendrix
City Secretary
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Date:
22
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E�ibit A: Site
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23
Exhibit B: Proposal
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Exhibit C: Sales Tax Exemption
'vict rtvni n
"I'�XAS CERTII7ICATE OF EXEMPTION
I claim an exemption &om payment of sales and use tnxes for the purchase of taxable
items described below or on the attached order or invoice.
Description of Items (or an attached order or invoice) To Be Purchased:
All Itcu�s
I claim this exemption for the following reason:
Name of exempt organi2ation: Citv of Fort Worth
Tesas Sales and Use Tax Permit Num6er 1-75-6000528-6
Project for which materials and supplies are purchased:
f I understand that I will be liable for payment of sales tfix, which may become due foe
failure to comply with the provisions of the state, city, and/or metropolitan transit
authority sales and use tax laws and comptroller rules regarding exempt purchases.
Liability for the tax will be determined by the price paid for the ta�cable items purchased
or Uie fair mazket rental value for the period of 8me used.
I understand that it is a misdemeanor to give an exemption certi£icate to U�e seller for
taxab�e items which I know, at the time of the purchasc, will be used in a mnnner other
than that expensed in this certificate and, upon conviction, may be fined up to 5500 per
offense.
Ta�c Exempt Status Due to Being a Goverrunentat Entity
Purchaser: City of Fort Worth
Street Address: 1000 Throckmorton Street
City, State, Zip Code: Fort Worth, Texns 76102
Sign Here: Date: 2 03 Phone: (817) 871-8517
� c+R. Kcya, �Ircclor Ftn�oce
This certificate does not require a number to be valid. Sales and use tax "exemption
❑umbers" or "tax exempt" numbers do not exist.
This certi6cate should be fumished to the supplier. Do not send the completed cerlificate
to the Comptroller ofPublic Accounts.
25
E�iibit D: Insurance
PUBLIC ARTS PROJECT
1NSURANCE REQUIREMENTS
Commercial General Liability (CGL)
$1,000,000 Each occuirence
$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, be as comprehensive as the
current Insurance Services Office (ISO) policy.
2. Automobile Liability
$1,000,000 Each accident
or
$250,000 Properly Damage
$500,000 Bodily Injury per person per occurrence
A commercial business policy shall provide coverage on ".Any Auto", defined as autos
owned, hired and non-owned.
3. For Artists/Contractors who have emplovees: Workers' Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease - per each employee
$500,000 Bodily Injuiy/Disease - policy limit
This coverage may be written as follows:
Workers' Compensation and Employers' Liability coverage with limits consistent with
statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et
seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of
$100,000 each accidendoccurrence, $500,000 bodily injury disease policy limit and
$100,000 per disease per employee
26
GENERAL POLICY REQUIREMENTS
• The City of Fort Worth, its Officers, Employees and Volunteers shall be named as
an Additional Insured. Exception... the additional insured requirement does not apply to
Workers' Compensation policies
• Forty-five (45) days notice of cancellation or non-renewal.
Example: "This insurance shall not be canceled, limited in scope or coverage, cancelled
or non-renewed, until after forty-five (45) days prior written notice has been given to the
City of Fort Worth.
• Wavier of rights of recovery (subrogation) 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. Except for workers' compensation, 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 the
"occurrence basis"". If coverage is underwritten on a claims-made basis, the rehoactive
date shall be coincident with or prior to the date of the contractual agreement and the
certificate of insurance shall state that the coverage is claims-made and the retroactive
date. The insurance coverage shall be maintained for the duration of the contractual
agreement and for five (5) years following completion of the service provided under the
contractual agreement or for the warranty period, whichever is longer. An annual
certificate of insurance submitted to the City shall evidence such insurance coverage.
• The deductible or self-insured retention (SIR) affecting required insurance
coverage shall be acceptable to and approved in writing by the Risk Manager of the 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 the City's Risk Manager.
• The 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 the City based upon changes in statutory law,
court decision or the claims history of the industry as well as of the contracting party to
the City of Fort Worth. The City shall be required to provide prior notice of ninety
(days).
• The City shall be entitled, upon requesC 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.
�
Exhibit E: Technical and Maintenance Record
ARTIST INFORMATION SHEET
LOCATION:
ARTIST:
ADDRESS:
CITY:
PHONE:
CELL:
GALLERY/REPRESENTATIVE:
TITLE OF WORK:
STATE: ZIP:
FAX:
EMAIL:
DESCRIPTION OF ARTWORK (attach if necessary):
MEDIUM OR MATERTAI, (list specific product information if relevant):
EDITION INFORMATION:
DATE AND PLACE EXECUTED:
1NSTALLATION DATE:
LOCATION OF ARTWORK AT SITE (attach architectural plans if available):
COLLABORATING ARTIST:
FABRICATOR (if other than artist):
29
ARTIST:
TITLE:
FABRICATOR ADDRESS:
LOCATION AND DESCRIPTION OF SIGNATURE MARKS (or copyright);
DIMENSIONS (in inches):
Artwark (without frame, mat, or pedestal): Height Width
Frame: Height Width Depth Aprox. Wt.
SPECIAL METHODS / MATERIALS UTILIZED IN EXECUTION OF ARTWORK:
A. MATERIAL (type, brand name, manufacturer):
B. FRAMING MATERIALS AND / OR CONSTRUCTION METHOD:
C.
D
E.
MATERIAL THICKNESS (guage): _
WELDING OR JOINTING METHOD:
WELDiNG ROD ALLOY OR JOINT MATERIAL:
F. CASTING ALLOY, WAX BODY, GLASS OR FIBER TYPE
G. MATERIAL FINISH (paint color and type, glaze, sanding grit, patina, fixative
coatings, etc.)
H. FOLJNDATION/INSTALLATION METHOD (bolt/pin size, adhesive)
ARTIST:
30
TITLE:
YEARLY MAINTENANCE AND CARE OF ARTWORK:
J. ROUTINE MAINTENANCE:
K. INTENTION RELATING TO ARTWORK OVER TIME (patina, etc. To what
surface should the work be cleaned?):
L. PLACEMENT OF ARTWORK (cautions regarding sunlight, heat, etc.):
M. CONSERVATION CONSULTANT:
ADDRESS:
PHONE:
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Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 3/20/2007
DATE: Tuesday, March 20, 2007
LOG NAME: 03MOLLYSCULPTCH REFERENCE NO.: C-22018
SUBJECT:
Authorization to Enter into an Artwork Commission Contract with Rebecca Low and James B. Low,
a General Partnership, d/b/a Rebecca Low Sculptural Metal Gallery & Studio for a Copper, Wall-
Mounted Sculpture Inspired by the City Logo, to be Installed in the Council Chambers at City Hall
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into an Artwork Commission
Contract with Rebecca Low and James B. Low, a general partnership, d/b/a Rebecca Low Sculptural Metal
Gallery & Studio, for fabrication and installation of a copper, wall-mounted sculpture inspired by the City
logo, in an amount not to exceed $23,801.
DISCUSSION:
The proposed Artwork Commission Contract will enable Fort Worth-based artist Rebecca Low to fabricate
and install a unique, hand-tooled copper wall-mounted sculpture inspired by "Miss Molly" — the mascot and
logo of the City of Fort Worth - to be prominently displayed behind the Dias in the Council Chambers at City
Hall.
The artwork, which will be approximately 22 inches in height, 8 feet in length and 18 inches in depth, will
include the words "Fort Worth." In addition, the piece will be backlit with fiber optic cable to set it off from
the wood paneled wall on which it will be hung. Spot lighting from tracks installed in the ceiling will also be
included in the project. Although the work will be securely installed, it may be moved and reinstalled, if
necessary, in the future.
The project is being funded by the Public Art Fund in the Specially Funded Capital Projects Fund.
BACKGROUND:
Conceptual proposals were solicited from four local sculptors included in the Fort Worth Public Art Artist
Registry: Rebecca Low, Michael Pavlovsky, Archie St. Clair and Seth Vandable. After the proposals were
reviewed, Ms. Low's proposal was presented to a committee that included Council Members Wendy Davis
and Sal Espino, and Mayor Moncrief. The committee subsequently met with the artist to discuss details of
her proposal, and selected the artist for this project.
M/WBE - The City's overall M/WBE goal for the Fort Worth Public Art program is 25 percent of total capital
project dollars expended on public art annually.
This project is physically located in COUNCIL DISTRICT 9, but serves all Fort Worth residents.
http:Uwww.cfwnet.org/council�acketlReports/mc�rint.asp 4/25/2007
Page 2 of 2
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the
Specially Funded Capital Projects Fund.
TO Fund/Account/Centers
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
FROM Fund/Account/Centers
C291 541200 031980073480 $23,801.00
Libby Watson (6183)
Karen Montgomery (6222)
Bridgette Garrett (8518)
Sandy Oliver (7371)
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 4/25/2007