HomeMy WebLinkAboutContract 43576 lTy SECRETARY .
C' NO.
AGREEMENT BETWEEN THE CITE" OF FORT WORTH
AND DONNA A L. DOBBERFUHL
FOR PRELIMINARY DESIGN OF PUBLIC ARC" FOR EAST R SEDALE ROL DABOUT
(HWY 287-MILLER)
This Agreement is entered into this , 201.2,, by and between
the City of Fart Worth, a hone-rule Municipal corporation of the State of Texas, acting by and
through Fernando Costa, its duly authorized Assistant Cite Manager, and Donna L. Do berfuhl,
an individual, of 1514 Broadway, San Antonio, Texas 78215. 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 dean hated project manager..
WHERE-AS, 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
environ-ent for Fort Worth residents, to commemorate the City's rich cultural and etImlic
diversity, to integrate the design work of Artist into the development of t he City's capital
infrastructure improvements, and to promote tourism and economic vitality in the City through.
the Artistic design of public spaces'.
WHEREAS, allocated from the 2004 Capital Improvement Program ` CIP" as part of
the .Long Range Public Art Plan nr the 2004 CI.P" approved by the Fort. Worth. City Council on
May 17, 2005 (M&C G-14801), are finds for, the design and production of artwork to be
integrated into arterial streets in conjunction with street improvements in Council District 8
WHEREAS, City is currently designing improvements to East Rosedale Street, frorn
Highway 287 to Miller Avenue, in Council District 8
WHEREAS, fallowing feedback from the community, City consultants, and the City, it
has been determined that the modern roundabout to be constructed, at the intersection of Mitchell
,
FOFFICIAAL REC R,C
CITY SECRETARY
Agreement between the City of Fort"'Forth and Donna L Dobberfuhl Page 1 of 28 no WORTH, TX
for Preliminary Design of Public Artwork for East Rosedale 287"-Miller
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Boulevard and East Rosedale Street provides the best opportunity for public artwork, as it is
adjacent to Sycamore Park with good views of downtown Fort Worth;
WHEREAS, the Fort Worth Art Commission (the "FWAC") has recommended the
Project in its Fiscal Year 2012 Annual Work Plan and Budget (approved by City Council on
December 6, 2011 as M&C C-25337);
WHEREAS, Artist was competitively selected through a process outlined in the Fort
Worth Public Art Master Plan conducted by the Contract Manager with oversight of the FWAC;
WHEREAS, the F'WAC has recommended that Artist, in coordination with City and the
City's Project Consultant, be retained to design an artwork for the Site; and
WHEREAS, City and Artist wish to set out the terms and conditions under which said
Work shall be designed to promote the integrity of Artist's ideas and statements as represented
by the Work.
NOW, THEREFORE, City and Artist, for and in consideration of the covenants, and
agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as
follows:
ARTICLE I
DEFfNIT'IONS
As used in this Agreement, the following terms shall have the meanings as set forth below:
I.I. Agreement — Means and includes this agreement between the City and Artist for
Preliminary Design of Public Art for the Site.
1.2. Artist — Means and includes Donna L. Dobberfuhl andJor her heirs, executors,
administrators, legal representatives, successors, agents, sub:artis,t, contractors, and assigns.
1.3. Contract Manager— Means and includes the Arts Council of Fort Worth and Tarrant
County, 'Inc., and/or its officers, directors, employees, agents, subsidiary organizations, parent
Agreement between the City of Fort Worth and Donna L. Dobberfuhl Page 2 of 28
for Preliminary Design of Public Artwork for East Rosedale 287-Miller
organization, successor corporations, assigns, predecessors, stockholders, administrators, land
related companies.
1.4. City �-- Means and includes the City of Fort worth and its officers, representatives,
agents, servants, and employees.
1.5. Effective Date Means and includes the date represented in the first paragraph of
this Agreement, which shall be the official date of execution of this Agreement.
1.6. Parties—Means and includes City and Artist.
1.7. Preliminary Design — Means all preliminary drawings, sketches, prototypes,
maquettes, models, narrative descriptions, budget estimates, and the like that are created by Artist
in connection with this Agreement and/or any prior agreement between. Artists and City for the
Work.
1.8. Preliminary Design Deliverables -- Means and includes those items set forth in
Article 2.3 of this Agreement that Artist is required to submit to City for review and approval.
1.9. Project Means and includes the capital improvement/public art development
undertaking of City for which Artist's services are to be provided pursuant to this Agreement.
1.10. Project 'Stakeholders . Means and includes the appropriate City Council
Members , and their appointed community representatives and the .fort North Art
Commission's appointed representative and others as may be appropriate.
1.11. Project Consultant — Means and includes the design firm/professional('s) hired by
City to design the Site.
1.12. Site — Means and includes the planned modern roundabout at the intersection of
Mitchell Boulevard and East Rosedale Street in southeast Dort worth, 76105, which is more
particularly described ire exhibit '"A."' attached hereto and incorporate ' herein by reference for all
'urposes,.
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for Preliminary Design of Pubilic Artwork for Fast l asedale 7-M1 iVler
1.13. Work — Means and includes the finished object(s) of art and design that are the
subject of this Agreement, or any intermediary stage of completion of such work.
ARTICLE 2
cc
SCOPE OF SERVICZ3
2.1. General..
(a) Artist shall perform all services and will furnish all supplies and materials as necessary for
developing the Preliminary Design of the Work. 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,, des,ign, color, size, material, and texture
of the Work, subject to review and input from Project Stakeholders and approval by City as
set forth in this Agreement.
(c) The specific location at the Site where the Work will be installed shall be mutually agreed
upon by City and Artist.
(d) Artist, upon request of Contra ct Manager, shall provide information and/or attend meetings with
appropriate City staff for purposes of risk assessment, safety review, sighting of the Work, and
permitting.
erin 1
(e) Prior to coinmencing work on the Preliminary Design, Artist shall meet with and seek 'input
from Project Stakeholders.
(f) A-rtist shall explore concepts for the Work within the imp�lementation budget set forth in
Article 2.,3.
(g) Artist shall design an impactful and unique artwork for the Site that utilizes carved brick is
meaningful to the community and is readily comprehendible from the point of view of
vehicular traffic and passing pedestrians.
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(h) Artist shall coordinate with the City's :project Consultant on the landscaping of the
roundabout Site where the Work will be installed.
(i) Artist's preliminary design of the Work shall include preliminary dimensions and massing of
the Work, scaled to size of the Site, as well as preliminary lighting design, including
speciin type and location of lighting fixtures.
Artist may explore using a percentage of City-owned salvaged, historic Thurber brick in the
Work.
(k) Artist shall meet and coordinate with project Stakeholders,, the City, City consultants and
others, as necessary, to explore the feasibility of integrating the Work into the Site in terms of
structural support, lighting, electricity, or other infrastructure needs to support the Work.
(1) Artist shall present the Preliminary Design to Project Stakeholders, the appropriate City staff,
and other City boards or commissions, as appropriate, for input and to the FWAC for review
and approval at dates and times mutually agreed upon.
(m)Artist shall make a maximum of two trips to Fort Worth, Texas for meetings and
presentations as indicated above. Additional trips, if required per this Article, may be
negotiated and agreed upon in writing by City and :Artist.
2.2. City Assistance.
Upon request by Artist, City shall promptly furnish all information and materials rewired by
Artist to the extent that such materials are available. City, upon request by Artist, shall also
provide correct scaled drawings of the Site, if available.
2.3. F'reliminal esi n Deliverables
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(a), within three months after the effective Date, Artist shall provide services and all supplies,
materials, and equipment necessary to provide certain deliverables, as set forth m this Article
2,3 to City for approval. Preliminary Design Deliverables shall consist of the fallowing:
i. Three preliminary design illustrations showing the proposed work from three vantage
points, including a plan view, which shall be at Least 20" x 30" and mounted on foam
core and/or in a high resolution digital format
ii A narrative description of the Artist" concept, proposed materials including plant
materials, fabrication, and installation methods, timeline for completion and
maintenance, and anticipated annual maintenance requirements,
iii Installation diagram, including approximate weight of the work, proposed base,
footing, or attachment methods and, if applicable, location(s) for an,y electrical
wiring and lighting fixtures;
iv. ,A preliminary budget estimate, on the budget fore attached hereto as Exhibit "B," for
implementation of a final design of the Artwork in an mount not exceed OINE
HUNDRED EL SE 'ENTY-TWO THOUSAND EIGHTY-NfNE DOLLARS AND N
CENTS ($,,172,089.0g), reflecting total costs and inclusive of artist's fees, travel,
.materials, labor, fabrication, transportation, construction, insurance, installation,
lighting, and all associated costs for the Work.
2.4. Prel i ina sign Review
(a) Upon completion of the Preliminary Design. Deliverables, Artist shall meet with the
designated Project Stakeholders, City staff and other City boards or commissions, as
appropriate, to present the Preliminary Design, at a date and time mutually agreed upon, for
input.
Agreement between the City of Fort Worth and'Donna L. Dobberfuhl 'age 6 of 2
for Preliminary Design of public Artwork for East Rosedale 287 Miller
(b) Artist shall present the Preliminary Design to the FWAC for approval at a regularly
scheduled FWAC meeting.
(c) City shall notify Artist of its approval, or disapproval, of the Preliminary Design within thirty
(30) business days of Artist' presentation to the FWAC.
(d) 'If City disapproves of the Preliminary Design, either in whole or in part, then City shall
inform Artist of each revision to be made to the Preliminary Design. City may require Artist
to make such revis,ions, to the Preliminary Design as City deems necessary in n its sole
discretion and/or for the Work to comply with applicable statutes, ordinances, or regulations
of any governmental regulatory agency having jurisdiction over the Site for reasons of safety
and security.
(e), Artist shall have thirty (30) calendar days from the date City intormed Artist of the
revision(s) to present the revised Preliminary Design in conformance with City's
requirements.
(f) If City dis,appiroives, of the resubmitted, Preliminary Design, any further Preliminary Design
resubmissions will be by mutual agreement of'the Parties and subject to the procedures and
terms in this Article. If the Parties desire not to continue with the resubmission process, then
this Agreement will automatically terminate,, with payment for work performed pier the
payment schedule in Article 3 up through the date of termination. (See Article 4.4.d)
(g) Upon City approval of the Preliminary Design, any revisions made to a City-approved
Preliminary Design shall become part of the Preliminary Design. Artist shall incorporate any
City-approved revisions, into the final design in conformance with City's requirements. Any
revisions shall become pail of any final design deliverables, if the Artist proceeds to the final
design phase. Artist shall provide the Preliminary Design presentation materials to the
Contract Manager to become part of the City of Fort Worth Public Art archive owned by
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City. These documents,, models, and/o�r drawings will be retained for archival and exhibition
purposes.
(h) Upon the expiration of the Ten-n (hereinafter defined) of this Agreement, if the Preliminary
Design is accepted by City, negotiations for final design of the Work.shall commence, which
shall become part of the deliverable under any potential artwork commission contract.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Corn ensation.
Total compensation to Artist under the Agreement shall be EIGHTEEN THOUSAND TWO
HUNDRED NINE DOLLARS AND NO CENTS-($18,209.0 which shall constitute full
compensation for any and all costs associated with the Agreement, including, but not limited to
all travel expenses, and services performed and materials furnished by Artist under this
Agreement. ATtist and City may amend this Agreement to allow for additional payment if
additional services are required.
3.2. Payment Schedule
City agrees to pay Artist in the following installments set forth below, each installment to
represent full and final, non-refundable payment for all services and materials provided prior to
the due date thereof:
(a), SIX THOUSAND ONE HUNDRED SIXTY-THREE DOLLARS AND NO CENTS
($6,163.00)upon execution of this Agreement.
(b) EIGHT THOUSAND SIX HUNDRED FIVE DOLLARS AND: NO CENTS
($8,605.00) within thirty (30) calendar days after Artist submits all of the Preliminary
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Design Deliverables required under Article 2.3 and 2.4 of this Agreement and makes a
presentation(s) of the Preliminary Design to the WAC .
(c) THREE THOUSAND FOUR HUNDRED FORTY-ONE DOLLARS, AND No
CENTS J$3,441-00) within thirty (30) calendar days after City's approval of the
Preliminary Design.
3.3. Sales Taxes.
City is a tax-exempt organization and no state or local saps taxes or federal excise taxes shall be
glue upon the Project. City shall supply Artist with the "Texas Certificate of Exemption, in
"R ," y Artist 'in the
substantially the sale form as that attached hereto as Exhibit C for use h
fulfillment of this Agreement.
3.4. Artist's Expenses
Artist shall be responsible for the payments of all expenses incurred during the perfor-ranee of
this Agreement, including, but not limited to, services, materials, mailing shipping charges and
insurance on submissions to City, cost of all travel, and costs for Artist's agents., consultants,
and/or employees necessary for the proper performance of the services required under this
Agreement.
ARTICLE LE 4
TERM AND TER-MfNATION
4.1. Term
This Agreement shall he in effect from the Effective fate, 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
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the awarding, amending, or making of any determinations with respect to this performance of this
Agreement.
4.3. Termination for Cause
If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms
of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material
to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this
Article 4.3 in accordance with the dispute resolution process set forth in Article 5... If the Parties
cannot resolve the disputes , then the disputing party shall thereupon have the right to terminate
this Agreement upon the delivery of a written"Notice of Termination" specifying the grounds for
termination. Termination of this Agreement under this provision shall not relieve the party in
default of any liability for darnages resulting from a breach or a violation of the terns of this
Agreement.
4.4. Termination for Convenience
a. The services to be performed under this Agreement may be terminated by either party,
subject to written notice submitted thirty 3 calendar days before termination, specifying the
grounds for termination.
b. If termination is for the convenience of City, City shall pay Artist for services actually
rendered up to the effective date of termination, and Ail-tint 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 terrnination, City shall have the right, in its sole discretion, to possession and transfer of
all work product produced by artist under this Agreement, including, but not limited to, finished,
and unfinished drawings, sketches, photographs, models,, and designs, up to the effective date of
termination, provided that no right to fabricate or execute the work shall pass to City.
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C. If termination is for the convenience of Artist, it shall have the right, in its sole
discretion, to pay Artist for services, actually rendered up to the effective date of termination or
require the Artist to remit to City a surn 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 for
services actually rendered, then all work product produced by Artist under this Agreement,
including, but not limited to, finished and unfinished drawings, sketches, photographs, models,
and designs, up to the effective date of termination shall become property of City.
d. If termination is by mutual agreement of the Parties as set forth 'in Article 2.4, then City
shall pay Artist for work performed per the payment schedule in Article 3 up th-rough the date of
term,ination. City shall have the right to possession and transfer of all work product produced by
Artist under this Agreement, including, but not limited to, finished and unfinished drawings,
sketches, photographs, models, and designs, up to the effective date of termination
4.5* Inca,pac,.Lty of Artist
a. In the event of Artist' death or Artist becoming physically or legally incapacitated during
the term of this Agreement, City shall have the right to terminate this Agreement on payment to
Artist or Artist' successors for all work and services performed prior to death or incapacity. All
work Product produced by Artist, including, but not limited to�, finished and unfinished drawings,,
sketches, photographs, models, and designs, up to the effective date of termination shall become
property of City.
b. Should Artist Preliminary Design have been approved, in the event of termination under
this Article 4.5,, City shall have the right to complete the Work, if feasible. Due regard shall be
made for Artist' intended results and proper credit and acknowledgement shall be given to Artist.
This provision shall survive the termination or expiration of this Agreement.
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ARTICLE 5
DISPUTE RESOLUTION
If either Artist or City has a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered or any warranty that arises under this Agreement, the Parties shall
first attempt to resoilve these issues through this dispute resolution process. The disputing, party
shall nodf
1 y the other party in writing as soon as practicable after discovering the claim, dispute,
or breach. The notice shall state the nature of the dispute and list the party's specific reasons for
such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a
good with effort, either through email, mail, phone conference, in person meetings,, or other
reasonable means to resolve any claim, dispute, breach, or other matter in question that may arise
out of or in connection with this Agreement.
If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of
receipt of the notice of' the dispute., then the Parties may submit the matter to non-binding
mediation upon written consent of the authorized representatives of both parties in accordance
with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas
Government Code, then in effect. Request for mediation shall be in writing, and shall request
that the mediation commence not less than fifteen (15) or more than forty-five (4 5) calendar days
following the date of request, except upon Agreement of the Parties. In the event City and
Artists, are unable to agree to a date for the mediation or to the identity of a mutually agreed
mediator within thin thirty (30) calendar days following the date of the request for mediation, then all
the conditions precedent in this article shall be deemed to have occurred. The Parties shall share
the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under
this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be
enforceable as a settlement agreement in any court having Jurisdiction. No provision of this
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agreement shall waive; any immunity or defense. No provision of this Agreement constitutes
consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall
have the right to exercise any and all rernedies available under law regarding the dispute. (See
Article 4.3)
ARTICLE 6,
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 General
a. Upon payment in full to Artist, the Preliminary Design, Work, and all other work product
under this Agreement shall become the prop�eily of City., without restriction on future use, except
as provided below. Artist shall retain copyright and other intellectual property rights in and to
the Preliminary Design and/or Work. By execution of this Agreement, Artist grants to the City an
exclusive, perpetual, and 'irrevocable license to graphically depict or display the Preliminary
Design and/or Work for any non-corn mercial purpose whatsoever. For purposes of this
limitation, any graphic depiction or display of the Preliminary Design and/or Work, intended to
promote or benefit City,, its public services or its public purposes, regardless of whether or not a
fee is charged to the public,, or whether revenue is otherwise received by City, shall be deemed a
non-commercial purpose.
b. In view of the intention that the Preliminary Design and the Work be unique, Artist shall
not make any additional exact duplicate reproductions of the Preliminary Design or the Work,,
nor shall Artist grant perm i,ssion to others to do so except with the express written permission of
City. However, nothing herein shall prevent Artist from creating future artworks in Artist's
manner and style of artistic expression.
C. Artist reserves every right available under the Federal Copyright Act to control the
making and dissemination of copies, or reproductions of the Preliminary Design and or Work,
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except as those rights are limited by this Agreement. City may make and disseminate
photographs, drawings, and other two-dimensional reproductions of the Preliminary Design
and/or Work and accompanying materials, for any municipal purpose. All reproductions by the
City shall contain a credit to the Artist and a copyright notice substantially in the following forni:
"(D date, Artist"s name."
d. Nothing in this Agreement shall prevent the Artist from using images of the Preliminary
Design and. or Work for marketing and promotional purposes in connection with the Artist's
business- provided, however, that Artist shall make its best, effort to credit City for
commissioning the Work whenever possible substantially in the following form: "an original,
artwork commissioned by and in the collection of the City of Fort Worth, Texas."
e. City is not responsible for any third-party infringement of Artist's copyright and not
responsible for protecting the intellectual property rights of'Artist
6.2 Artist's Address.
Artist shall notify City of changes in Artist's address as set forth in Article 12. The failure to do so,, if
f
such failure prevents City from locating Artist, shall be deemed a waiver by Artist of the right
subsequently to enforce these provisions that require the express approval of Artist. Notwithstanding this
provision, City shall make every reasonable effort to locate Artist when matters arise relating to Artist's,
rights.
ARTICLE, 7
WARRANTIES OF TITLE AND COPYRIGHT
Artist represents and warrants that:
(a) Preliminary Design and/or Work shall be the original product of the Artist' sole creative
efforts.
(b) Preliminary Design and/or Work is and will be unique and original, and does not infringe
upon any copyright or the rights of any person;
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(c) Artist has not sold, assigned, transferred, licensed, granted, encumbered, or utilized the
Preliminary Design andJor Work or any copyright related thereto that may affect orimpair
the rights granted pursuant to this Agreement;
(d) Preliminary Design and/o�r Work or duplicate thereof) have not been accepted for sale
elsewhere;
(ell Artist has the ftill power to enter into and perform this Agreement and to make the grant
of rights contained in this Agreement; and
(f) All services performed hereunder shall be performed in accordance with all applicable
laws, regulations, ordinances, etc., and with all necessary care, skill and diligence.
ARTICLE 8,,
ARTIST AS fNDEPENDEN"I' CONTRACTOR
Artist shall perform all work and services hereunder as an independent contractor, and not
as an officer., agent., servant or employee of City. Artist shall have exclusive control of and the
exclusive right to control, the details of the work performed hereunder, and all persons
performing same, and shall be solely responsible for the acts and omissions of his/her officers,
agents, employees, and subcontractors. Nothing herein shall be construed as creating a
partnership or Joint venture between City and Artist, his/her officers, agents, employees and
subcontractors, and doctrine of respondent superior has no application as between City and
Artist.
ARTICLE 9
1NDEM1"-,;1F1CAJJ0N
9.1. General ln.denpilty
a. 9.1. General Indet it
i. ARTIST COVENANTS AND AGREES TO INDEMNIFY, HOLD
HARMLESS, AND DEFEND,, AT ITS OWN EXPENSE, CITY FROM AND
AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,
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ACTIONS, CAUSES of ACTION, :LIENS, LOSSES, EXPENSES, COT '
FEES (INCLUDING, . UT NOT LIMITED TO, ATTO� EY S FEES AND
COSTS of DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES,
LIABILITIES, AND/OR SUITS OF ANY KNIT OR NATURE,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS
(INCLUDING, BUT NOT LIMITED To, WORKERS' COMPENSATION
ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE)
AN OIL PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO,
DEATH), TO ANY AND ALL PERSONS, OR OTHER HARM FOR
WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER
KIND OR CHARACTER, "WHETHER REAL OR ASSERTED, ARISING
OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR
OMMISSIONS OF ARTIST' AND/'OR ARTIST'S SUBARTI TS AND
CONTRACTORS ANA, THEIR RESPECTIVE OFFIC RS, AGENTS,
EMPLOYEES,, DIRECTORS, MEMBERS,1 PARTNERS, AND
REPRESENTATIVES IN CONNECTION WITH THE EXECUTION,
PERFORMANCE, ATTEMPTED PERFORMANCE, O
NONPERFORMANCE OF THIS AGREEMENT.
i . Artist agrees to and shall release City from any and all liability for injury, death,
damage, or loss to persons or property, sustained or caused by Artist in conriection
with or incidental to performance under this Agreement.
iii. 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.
b. 9..2. Intellectual Pro ert
Artist agrees to assume full responsibility for complying with all Mate and Federal
Copyright Laws and any other regulations, including, but not limited to, the assumption of any
and all responsibilities for paying royalties that are due for the use of other third party
copyrighted works by Artist. City expressly assumes no obligations, implied or otherwise.,
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regarding payment or collection of any such fees or financial obligations. City specifically does
not authorize, permit., or condone the reproduction or use of copyrighted materials by Artist
without the appropriate licenses or permission being secured by Artist in advance. IT IS
FURTHER AGREED THAT ARTIST SHALL RELEASE,, DEFEND, INDEMNIFY, AND
HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIM, LOSSES,
DAMAGES,, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION,
INCLUDING, BUT NOT LIMITED TO, ATTORNEY9S FEES, TO WHICH THEY MAY
BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF THE WORKS
BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER
LACK OF OWNERSHIP, AUTHORSHIP19 OR ORIGINALITY. City expressly assumes no
obligation 4 ive
i ion to review or obtain appropriate licensing and all such licensing shall be the exclusive
obligation of'Art ist.
C. 9.3. Survival
All indemnification provisions of this Agreement shall survive the termination or
expiration of this Agreement.
ARTICLE 10
EQUAL OPPORTUNITY
a. Artist shall not engage in any unlawful discrimination biased on race, creed, color,
I
national origin, sex, age, religion, disability, marital status, citizenship status,, sexual
orientation or any other prohibited criteria in any employment decisions relating to this
Agreement, and A-rtist represents and warrants that to the extent required by applicable
laws, it is an equal opportunity employer and shalt comply with all applicable laws and
regulations in any employment decisions.
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b. In the event of Artist noncompliance with the nondiscrimination clauses of this
Agreement, this Agreement may be canceled, terminated, or suspended in whole or in
part, and Artist may be debarred from further,agreements with City.
ARTICLE I I
MISCELLANEOUS
I L L Compliance
Artist shall comply with all Federal, state, and local statutes, ordinances, and regulations
applicable to the performance of Artist's services under this Agreement.
11.2. Entire A ueement
This writing embodies the entire agreement and understanding between the Parties hereto, and
there are no other agreements and understandings, oral or written, with reference to the subject
matter hereof that are not merged herein and superseded hereby.,
11.3. Amendments
No alteration, change, modification, or amendment of the terms of this Agreement shall be valid
or effective unless made in writing and signed by both parties hereto and approved by appropriate
action of City.
11.4. Waiver
No waiver of performance by either party shall be construed as or operate as a waiver of any
subsequent default of any terms, covenants, and conditions of this Agreement. The payment or
acceptance of fees for any period after a default shall not be deemed a waiver of any right or
acceptance of defective performance.
11-5. Governina Law and Venue
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of
this Agreement, venue for such action shall He in state courts located in Tarrant County, Texas or
Agreement between the City of Fort worth and Donna L. Dobberfuhl Page 18 of 28
for Preliminary Design of Public Artwork for East Rosedale 287- flier.
the United States District Court for the Northern District of Texas — Fort Worth Division. This
Agreement shall be construed in accordance with the laws of the State of Texas.
11.6. Successors and Assigns
Neither party hereto shall assign, sublet, or transfer its interest herein without prior written
consent of the other party,, and any attempted assignment, sublease, or transfer of all or any part
hereof without such prior written consent shall be void. This Agreement shall be binding upon
and shall inure to the benefit of City and Artist and their respective successors and permitted
assigns.
11.7. No Third-Party Beneficiaries
The provisions, and conditions of this Agreement are solely for the benefit of City and Artist, and
any lawful successor or assign, and are not intended to create any rights, contractual, or
otherwise, to any other person or entity.
11.8 Severability
If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions, shall not in any way be affected
or impaired.
11.9. Force Ma'eure
It is expressly understood and agreed by the Parties, to this Agreement that, if the performance of
any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement
weather; governmental restrictions, regulations, or interferences; fires-, strikes-, lockouts,1 national
disasters, riots, material or labor restrictions, transportation problems, or any other circumstances
which are reasonably beyond the control of the party obligated or permitted under the terms of
this Agreement to do or perform the same,1 regardless, of whether any such circumstance is similar
to any of those enumerated or not, the party so obligated or permitted shall, be excused from
Agreement between the City of Fort Worth and Donna L. Dobberfuhl Page 19 of 28
for Preliminary Design of Public Artwork for East Rosedale 287-Miller
doing or performing the same during such period of delay, so that the time period applicable to
such design or construction requirement shall be extended for a period of time equal to the period
such party was delayed.
11.10. Contract Construction
The Parties acknowledge that each party, and, if it so chooses, its counsel, have reviewed and
revised this Agreement and that the non-.al rule of construction to the effect that any ambigu'I
ties
are to be resolved against the drafting party must not be employed in the interpretation of this
Agreement or any amendments,or exhibits hereto.,
11.11. Fiscal Funding Out
If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council
fails to appropriate funds sufficient for the City to fulfill its obligations under this Agreement, the
City may terminate this Agreement to be effective on the later of (i) thirty (30) days following,
delivery by City to Artist of written notice of City's intention to terminate or (H)l the last date for
which funding has been appropriated by the Fort Worth City Council for the purposes set forth in
this Agreement.
11.12. Captions
Captions and headings used in this Agreement are for reference purposes: only and shall not be
deemed a part of this Agreement.
11.13 Righ,ttoAudit
Artist agrees that City will have the right to audit the financial and business records of Artist that
relate to, the Work (collectively ''Records") at any time during the Term of this Agreement and
for three (3) years thereafter in order to determine compliance with this Agreement. Throughout
the Term of this Agreement and for three (3) years thereafter, the Artist shall make all Records
a Hable to the City at 1000 Throckmorton Street, Fort Worth,
val Texas or at another location in the
Agreement between the City of Fort Worth and Donna L. Dobberfuhl Page 20 of 28
for Preliminary Desigini,of Pu�blic Artwork for East Rosedale 28,7-Miller
x.
City acceptable to both parties following reasonable advance notice by the City and shall
otherwise cooperate fully with the City during any audit. Notwithstanding anything to the
contrary herein, this Article shall survive expiration or earlier termination of this Agreement.
11,14 Certified MWBE
If applicable, Artist is encouraged, to make its best effort to become a certified Minority Business
Enterprise (MBE) or Woman Business, Enterprise (W BE) firm with a certifying agency whose
certification is accepted by the City under the City's Business Diversity Enterprise Ordinance.
11.15 Survival Provision
The provisions contained in Articles 6 (Ownership and Intellectual Property Rights), 7
(Warranties of Title and Copyright), 8 (Artist as an Independent Contractor), and 9
(Indemnification) shall survive the termination or expiration of this Agreement.
11.16 Public Information Act
Artist understands and acknowledges that City is a public entity under the laws, of the State of
Texas, and, as such,, all documents, held by City are subject to disclosure under Chapter 552 of the
Texas, Government Code. Artist shall clearly indicate to City what information it deems
proprietary. If' City is required to disclose any documents that may reveal any of Artist'
Proprietary Information to third parties under the Texas Government Code, or by any other legal,
process, law, 'rule, or judicial order by a court of competent Jurisdiction, City will notify Artist
prior to disclosure of such documents, and give Artist the opportunity to submit reasons for
objections to disclosure. City agrees to restrict access to Artist' 'information to those persons,
within its organisation who have a need to know for purposes of management of this Agreement.
City agrees to inform its employees, of the obligations under this paragraph and to enforce rules
and procedures that will prevent any unauthorized disclosure or transfer of information. City will
use its best efforts to secure and protect Artist' information in the same manner and to the same
Agreement between the City of Fort Worth and Donna L. Dobberfuhl Page 21 of 28
for Preliminary Design of Public Artwork for East Rosedale 287-Miller
degree it protects its own proprietary information; however, City does not guarantee that any
information deemed proprietary by Artist will be protected from public disclosure if release is
required by law. The foregoing obligation regarding confidentiality shall remain in effect for a
I
period of three (3) years after the expiration of th is Agreement.
11.17 C ounterpar1s and Electronic Si natures
This Agreement may be executed in several counterparts, each of which will be deemed an
A
original, but all of which together will constitute one and the same Instrument. signature
I urp ,
received via facsimile or electronically via email shall be as legally binding f or all p oses as an
original signature.
11.18. Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines, set forth in this
Agreement.
ARTICLE 12
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been duly given upon
the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or
certified ma 1, return receipt requested, postage prepaid, as follows:
1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager
City Manager's Office
C I ty of Fort Worth
1000 Th-rockmorton Street,, Third Floor
Fort Worth, Texas 76102
Copies to: Sarah Fullenwider, City Attorney
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76,102
Agreement between the City of F=ort Worth and!Donna L. Dobberf u :
h1l Page 22 olf'28,
far Preliminary Design of Public Artwork for East Rosedale 287-Miller
Martha Peters,, Vice President of Public Art
its Council of Fort rth & Tarrant County
13 0 Gerdy Street
Fort Worth,, TeXas 76107
2. ARTIST Dorma L. Dobberfuhl
1514 Broadway
San Antonlo, TX 78215
[SIGNATURES APPEAR ON THE L, .G PAGE]
Agreemienit,ble,twee the City of Fort Worth and Donna L. Dobiblerfuhl Page 23 of 28
for Preliminary Design of Public Artwork for East Rosedale 287-Miller
IN WITNESS HEREO�F, the Parties hereto have executed this Agreement on the Effective Date.
CITY OF FORT WORTH ARTIST
by:
Fernando Costa Donna L. Dobberfuhl
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY.,-
Tyler,,;
W
W ac,h
Ass,,,,l clity Attorney,
F94-q��
q
ATTESTS ,eot00000
0
0
0
40
0
0 0
0
400 0
....................
fiary J. Kayser / 111
a, / A 00000000 F%xy
City Secretary 4 1 1
Contract Authorization: No M&C Required
O,FFICIIAL RECORD
CITY S,ECRETARY
FT WORTHl TX
Agreement between the City of Fort Worth and'Donna L. Dobberfuhl Page 24 of 2,8
for Preliminary Design of Puibliic A lrk for East Rosedale 287-Miller
IN WITNESS B E OF,the Parties heretohav exec uted tbJs,Agreement on the Effective Date,
CITY OF FORT WORTH ARTIST
Fernando Costa Donna L.Dobberful)l
Assistant City Manager
APPROVED AS TO FORM
AND LEGALITY:
Tyler F.Wallach
Assistant City Attojmey
ATTESTEM BY:
Mary, J.Kayser
City Secretary
Contract Authon"zation No M&C Required
OFFICIAL RECORD
CITY SECRETARY
1L!FLT. VWVORTHj TX
Agreement between the Cfty of Fort Worth and Donna L.Dobberfuhl Page 24 of 28
for Preliminary Design of Public Artwork for East Rosedale 287-Miller
................ .........................
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Exhibit B
Implementation Budget
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:
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AIRTf ST`S FEE 120%
TRAVEL
(For artists who live more than 50 miles from Fort Worth)
Airfare
Carr Rental
Per Dem Expe es at per day
Mileage at per mile
INSURANCE
AutolHired Vehicle Liability
General Liability for Artist I Sjibcontractors
ees,Comp.I Employees Liability
"Other.as applicable
ADMINISTRATIVE EXPENSES
Phone.,Fax
Deliver;!Shipping(for correspondence-samples,, o Is,dra 'nags etc)
Reprog raphi c Service
Supplies
PROFESSIONAL CONSULTANT IFE'ES.
(if applicable.drawing rnust be signed and sealed by a professional roistered to practice
in the State of Texas)
Architect`
Structural Engineer*
Electrical Engineer*
Conserdaor
Photographer for docum enztation of cor-plated%vork.
Other*
MATERIALS
(Please attach a complete list of materials.lierr i e all anticipated aspects and
components Othi per unit coat estimates)
Materials*Taal,
FABRICATION COSTS
(include and itemize all portions of sub contracted woM, and,, r to be completed by
artist.
Artist's Labor(_hours at��per hour)Total
Subcontracted Labor (Total)
Facility!;Equ pmenl Rental(used exclusively for this project)related to fabrication
SITE PREPARATION
(Do not include costs covefed by FWPA_City of Fort Worth or other)
Test Dnlling'*
Removal*
Landscaoinglinigation#
Electrical I” od,ificati nrs*
'4xe"r WofWMech n ical Devices
Other*
Agreement between the City of Fort Worth and Donna L, Dobberfuhl Page 26 of 28
for Preliminary Design of Public Artwork for East Rosedale 287-Miller
TRANSPORTAT11ON
Materials to Fatoricaton Site'
Hknish%ed *To Installation Site*
Other*
BASUMOUNTING
Base
Mounting Devices an,-d Corgi W�r)ents
Foun,dationlFooNng
Other
INSTALLATION COSTS
(Costs must include allo"oce for after hours installmon,it applicable.Please attach a
comolele list of equipment and individual estimates*,.th this forri)
Subcontracted LaW
Scaffolicling,
Equipment Rental related to instaflfatiori*
Off-dUtV:PolicetSewrityll
Traffic Barriers'
0.orage Faclfli:-y'Re-ji-al"
ity'Z>ernlits
J
Display Cserices
Fireproofing",
Site Restw-atloW
Other*
LIGHTING
Designers*
Ftxtures'
Bulbs*
Site Preoafatjon*
GRAND TOTAL
Please make any necessary notes here.-
Prepared By,.
Date:
(Revised May 2011)
Agreement between the City of Fort Worth and Donna L. Dobberfuhl Page 27 of 28
for Preliminary Design of public A,rtwolrk for East Rosedale 287-Miller
Exhibit C
Sales Tax Exemption
,KjjFICAj*E OF E,,Xj,,MPTI0N
M eXCIDpoon fh")Ili pa 'Illlh I(111"'Naks and uric I,wvc*tin Oita purcha.,,ic I a,xable I I k!"I I I �s'c In,bw,
ht-ok"t )r Iyrl thjt„ oi-invoice.
........... ............
D�so,'Vpti(IA Oi,'Itcmv�(oT an, ol'Xier or InN:I'ViLc)Ti".i Big Purvhatsod-
..............
I clalm Thj,,q "I'l the 1,'oflo,�vtn re
Nanic;:i�,fTxenript Orgo'niZatuotv CITY OF FORT WORTII,TEXAS
p,,,n
TEXASSALES AND USE TAX Pl,-',R.FvIIT NUMBER 1-75-6000528-6
Pit,jes,L-A for which mat erna. t sr.p°phes zxry purchiv;ed:
-..........
I undermarid fliat I will'be liable for pa ncn, U,re to com P Y
N,,T t of sales tax,-%,hicb inzy become duc tit`f4l)
with ffir,P",IA'i,9Jt'VnS.;14 01'e state,City, rnerrt-ToJitan traj isit�a horitysl c ,I,n F t , 1. nd
1:vvtri:f I lcj,-ruics rcgardi t(��r cfi��e lax�vfl I be dctcrminu]by tlie price pal-d
11ng exempt Pu':mhascs. L,iaabibo� k 0
fir the i�,txable ilcnl:P"n'A' a'sed(')1.IN,fizdi,ttv,,,trkct rental value fi*r t1w pwtit.)d of'time uS-C-d-
I understarid than it,is a n-vt'sdC7IICLkI'IK)r 10 6t,,INV!in excmption,cert,1,It cite,io the sitllcr f4'rr taxabl�items whico"I
,,'A", � -us , -i�a thzoz m -- -ed in,(hi-9 c,,ottifit �,;
I knt)%v.41il dic time,of"the purcb;,,).S,-v, ill tx �vd wa majiner od ti Lfi,,�I exp=s C
and,upcin be fiincd up,to S500 get, �ffcnsc..
Dix to Mji jg,i g j,,f.,,6� t zit
C11"Y OF'F(,")RT WORTIL TEXAS
Sltreet 1000 T 11 ROC K M 0 H't ON S TREE T
(23ty,15'iate.Ztp Cl,°,xlc: FORT WORTIL TEX-ALS 76102
Y
Slan Hem: '71 Date: June 11, NO, 8 1 119 'K I
'I-hiss c en k fi i�at c, Lreq u i re a n itn,,i lvr ti�f by v�,vl RI, S�I IV S 4 rId LI,S,,C ZJ X tI 1 11 h)0 11 k I Ill b,M, - Syr it ax
el,xeriipi,"rtumbvfs:do tint exi,,
GuIrtr1h,roller I.If
Agreement between the City of Fort Worth and Donna L. Dobberfuhl Page 28 of 28
for Preliminary Design of Public Artwork for East Rosedale 287-Miller
Maa Mlontalvol
From: Marla Owen
Sent-, Friday, August 3,11 20,12 10.-58 AM
To: Mary Montalvo
Subject: FW.* Fort Worth Chapter Chorus and Scott Theatre
Attachments-, 2012 show 424.,JPG
Fabulous!!
Marla Fleischmann Owen
Business Development Manager
Fort Worth Community Arts Center
1300 Gendy Street
Fort Worth,TX 76107
direct-817.2�918.30,2116
fax: 7,, 3.3066
marla@fwcac.oLg
See what's ,oin on at www.artsf6rtworth.QAr
Like us on Facebook at http:/Zwww.facebook.comZ#!`/Pa,ges/Fort-Wor-th-Commuajty-Arts-Center 85376279635
Rockford Willett [ma i Ito,-Rockford Wi I lett@1 oway.,com
From 1. 8
Sent Friday, August 31, 2012 9:03 AM
To: Marla Owen, Brandon Swift
Suibiecti.si Fort Worth Chapter Chorus and Scott Thealtre
Hello Marla and Brandon!
We thoroughly enjoyed presenting our annual show again in the beautiful Scott Theatre!! This was the third year in a
row and probably 5th or 61h time we have presented the show at your facility.
As far as I'm concerned, everything was perfect with the theatre and you have the best crew in the business. I enjoyed
working with Mike for the initial set-up. He and Costa, Chase, and David proved again that they are very competent
professionals. And of course I always,enjoy working with Brandon! I attached a photo of the crew., but unfortunately
failed to get one with Mike.
The only complaint we had was the sound of a closing door in another part of the building that was heard repeatedly in
the theatre auditorium. Honestly, I never heard it, but several of our patrons did and asked me to mention it.
My,treasurer also asked me to inquire about the clean-up, damage refund and when that is usually sent. Not that were
rushing you, because you were very patient with us regarding the timing of our deposit. He just needs that info so he
can make the final assessment of profit expenses for the show.
Once again, we had a very enjoyable experience in the Scott Theatre and we look forward to working with you again!
1
Best regards,
Rocky Willett
Show Chairman
V.P, Marketing& PR Fort Worth Cha ter
A'
E
HARMONY
SOCIETY
2