HomeMy WebLinkAboutContract 45242 (2)•
CITY SECRETARY
CONTRACT N 0
AGREEMENT BETWEEN THE CITY OF FORT WORTH
AND FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L.C., FOR COMMISSION OF PUBLIC
ARTWORK FOR FIRE STATION #27
This Agreement is entered into this day of ¥,v'I ember , 2011, by and between the City
of Fort Worth, a home -rule municipal corporation of the State of Texas, acting by and through Fernando
Costa, its duly authorized Assistant City Manager, and Frances Bagley, L.L.C. and Tom Orr L.L.C., of
8157 Barbaree Blvd., Dallas, Texas 75228. City has designated the Arts Council of Fort Worth and
Tarrant County, Inc., to manage this Agreement on its behalf. The Contract Manager shall act through
its designated Public Art project manager.
WHEREAS, pursuant to Chapter 2, Sections 2-56 through 2-61 of the Fort Worth Code of
Ordinances, the Fort Worth Public Art Prograrn's goals are to create an enhanced visual environment for
Fort Worth residents, to commemorate the City's rich cultural and ethnic diversity, to integrate the
design work of artists into the development of the City's capital infrastructure improvements, and to
promote tourism and economic vitality in the City through the artistic design of public spaces;
WHEREAS, City has constructed a new Fire Station #27 at 2940 Precinct Line Road (at the
intersection of Trinity Boulevard) in north east Fort Worth, TX, 76053;
WHEREAS, City has appropriated funds from the 2004 CIP (Proposition #4) for a public art
project at Site;
WHEREAS, City desires to include an artwork at the fire station to enhance visitor's, fire
fighters and the community's experience of the facility;
WHEREAS, this Project was included in the 2011 Fort Worth Public Art Annual Work Plan,
adopted by the Fort Worth City Council on October 19, 2010 (M&C C-24554);
WHEREAS, the Fort Worth Art Commission (the "FWAC") previously approved a prior design
for the Site created by Frances Bagley and Tom Orr in 2009, but City ultimately decided against that
design and placed Frances Bagley and Tom Orr under a subsequent design contract (City Secretary No.
40732);
WHEREAS, the FWAC approved Artists' new final design for the Work on April 11, 2011,
which is an undulating, free-standing metal sculpture that will be 8-feet high (at its highest point), 29-
feet long, constructed of silver, powder -coated solid steel rods and designed to resemble a line drawing
of a fountain, creating a waterfall -like, moire effect and visible from Precinct Line Road and Trinity
Boulevard;
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L.C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
OFFICIAL RECORD
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WHEREAS, the FWAC has recommended the Artists be commissioned to fabricate, deliver, and
install the Work at the Site;
WHEREAS, City and Artists wish to set out the terms and conditions under which the Work
shall be fabricated, delivered and installed in order to promote the integrity of Artists ideas and
statements as represented by the Artwork Design;
NOW, THEREFORE, City and Artists for and in consideration of the covenants and agreements
hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings as set forth below:
1.1. Agreement — Means and includes this agreement between the City of Fort Worth and
Artists for commission of public art for the Site.
1.2. Artists - Means and includes Frances Bagley, L.L.C., and Tom Orr L L C „ and all other
persons or entities for which they are legally responsible, including, but not limited to, their members,
managing members, officers, managers, proprietors, directors, employees, representatives, agents,
subsidiary organizations, parent organizations, successor entities, assigns, predecessors, stockholders,
administrators, subartists, contractors, and related companies.
1.3. Artwork Design — Means the final, City -approved design of the Work for the Site created
in connection with the Design Contract, and includes, but it not limited to, all final, City -approved
maquettes, drawings, sketches, prototypes and the like that were created by Artist in connection with the
Design Contract. The design and description is attached hereto as Exhibit "A ' and incorporated herein
for all purpose.
1.4. Contract Manager — Means and includes the Arts Council of Fort Worth and Tarrant
County, Inc., and all other persons or entities for which Contract Manager is legally responsible,
including, but not limited to, its officers, directors, employees, agents, subsidiary organizations, parent
organization, successor corporations, assigns, predecessors, stockholders, administrators, and related
companies.
1.5. City - Means and includes the City of Fort Worth, Texas and includes its officers,
representatives, agents, servants, and employees.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 2 of 36
1.6. Design Contract — Means and includes Fort Worth City Secretary Contract 40732
(Agreement for Design of Public Art Work at Fire Station #27 between the City of Fort Worth and
Artists Frances Bagley and Tom Orr).
1.7. Effective Date — Means and includes the date that is represented in the first paragraph of
this Agreement, which shall be the official date of execution of this Agreement.
1.8. Final Acceptance — Means City's written acknowledgement to Artists that all services
required of the Artists have been completed in conformity with the Artwork Design.
1.9. Parties — Means and includes City and Artists.
1.10. Project — Means and includes the capital improvement/public art development
undertaking of City for which Artists' services are to be provided pursuant to this Agreement.
1.11. Schedule — Means and includes a written plan of procedure for completion of fabrication,
delivery, and installation of the Work, including, but not limited to, the submission of progress reports.
1.12. Site — Means and includes Fort Worth Fire Station Number 27 located at 2940 Precinct
Line Road, Fort Worth, Texas 76118, which is more particularly shown on Exhibit "B," attached hereto
and incorporated herein by reference for all purposes.
1.13. Work — Means and includes the finished object(s) of art and design that is the subject of
the Agreement, or any intermediary stage of completion of such Work.
ARTICLE 2
SCOPE OF SERVICES AND DELIVERABLES
2.1. Design Approval.
City and Artists acknowledge that the Artists' Artwork Design has been reviewed and approved by the
FWAC and is the basis for executing this Agreement with Artists.
2.2. Scone of Services.
a. Artists shall perform all services and will furnish all supplies, materials, and equipment as
necessary to fabricate, deliver, and install the Work, as set forth in this Agreement. Services
shall be performed in a professional manner and in strict compliance with all terms and
conditions in this Agreement.
b. Artists 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
of the Site in which the Work shall be installed has been mutually agreed upon by City, the
City's Fire Department, and Artists.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 3 of 36
c. Artists, upon request of Contract Manager, shall attend meetings with appropriate City staff for
purposes of risk assessment, safety review, sighting of the work, and permitting.
d. Upon request of City, Artists shall consult with a qualified art conservator and shall provide
written maintenance recommendations for the Work from said conservator to the Contract
Manager.
e. Artists shall participate in one public education event in Fort Worth at a mutually agreed upon
date and time.
f. Artists shall install the work on dates and times mutually agreed upon by Artists and City.
2.3. City Assistance.
Upon request by Artists, City shall promptly furnish all information and materials required by Artist to
the extent that such materials are available. City, upon request by Artists, shall also provide correct
scaled drawings of the Site, if available.
2.4. Execution of the Work
a. Artists shall furnish the Schedule to the Contract Manager within ten (10) business days after the
Effective Date of this Agreement. After written approval of the Schedule by City, Artists shall
fabricate, deliver, and install the Work in accordance with such Schedule. Schedule changes
may be accomplished by written agreement between Artists and City.
b. City and/or Contract Manager, upon written request, shall have the right to review the Work
during its fabrication and/or request visual documentation of the fabrication. Artists shall, upon
written request by City and/or Contract Manager, provide a written progress report detailing the
progress made toward completion of the Work and the remainder of work to be done to complete
the Work. Artists shall comply with any request made by the Contract Manager pursuant to this
Article 2.4 within thirty (30) days after receipt of the written request.
c. Artists shall complete the fabrication of the Work in accordance with the Artwork Design.
Artists shall present to the Contract Manager, in writing, for further review and approval, any
changes in the scope design color, size, material or texture of the Work. The Contract
Manager, in its discretion, shall determine whether the changes are significant and whether the
changes conform to the Artwork Design. If the Contract Manager, in its sole discretion,
determines that the changes are significant and do not conform with the Artwork Design, then
the Contract Manager shall, in light of the Artwork Design, determine whether a significant
change requires City approval. If the Contract Manager determines that the significant change(s)
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L L C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 4 of 36
requires City approval, then the change(s) may be presented to the FWAC for review and
approval at a regularly scheduled or special meeting of the FWAC.
2.6. Delivery and Installation.
a. Artists shall implement the Work at Site in compliance with the Schedule; provided, however,
that implementation may not commence until written permission is delivered to Artist by City.
b. Artists, individually and through their subcontractors, shall take all necessary precautions to
protect and preserve the integrity and finish of the Site while implementing the Work. If City
determines in its sole discretion, that Artists or Artists' subcontractors have damaged the Site,
then City shall inform Artists, in writing, of the damage. Artists, at their own expense, shall have
thirty (30) days, from receipt of City's written notice to repair the damage to the Site to the
satisfaction of City. If the Artist fails to repair the damages to the satisfaction of City within
thirty (30) after receipt of the notice, then City shall have the right to deduct the cost of repairs
from any remaining payment due to Artists under this Agreement, which shall be in addition to
any and all other rights and remedies available to City at law or in equity
c. Artists, individually and through their subcontractors, shall take all reasonable precautions to
protect and preserve the existing landscaping on the berm at the Site while delivering and
installing the Work. Artists shall remove, save, and replant landscaping where possible,
understanding that it may not be feasible to reuse all of the existing plant materials once the
Work is installed.
d. Artists shall be responsible for all costs associated with the materials, fabrication, delivery, and
installation of the Work, including, but not limited to, equipment rentals, transportation and
labor.
e. Artists are responsible for obtaining and paying for all necessary permits.
f. Upon City's request, prior to installation of the Work, Artists shall consult with a qualified art
conservator and provide to the Contract Manager written instructions for appropriate
maintenance and preservation of the Work on the form attached hereto as Exhibit "C" (Technical
and Maintenance Record). The appropriate maintenance and preservation instructions shall not
be substantially different from the maintenance and preservation anticipated and conveyed to
City for the Work in the final design phase for the Work. [NOTE: The written instructions
provided during the final design phase of this project may fulfill all or part of this requirement to
the extent that such instructions represent the final Technical and Maintenance Record].
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 5 of 36
2.7. Post -installation.
a. Within thirty (30) days after the installation of the Work, Artists shall furnish Contract Manager
with a set of at least eight (8) high -resolution digital images (.tiff format) and eight (8) low -
resolution digital images (.peg format) showing the Work from at least two vantage points and
including detail shots, as selected by Contract Manager, to document the Work after the Work is
installed.
b. Artists shall make his/her best efforts to be available at such time or times as may be agreed
between City and Artists to attend any inauguration or presentation ceremonies relating to the
transfer of the Work to City. City shall use its best efforts to arrange for publicity for the
completed Work in such art publications and otherwise as may be determined between City and
Artists as soon as practicable following installation.
c. For the duration of the Agreement, if Artists intend to seek their own publicity for the Work,
such efforts and/or press releases must be approved, in advance, by City.
2.8. Final Acceptance.
a. Artists shall notify City and Contract Manager, in writing when all services required have been
completed in conformity with the Artwork Design. Included in such notice from Artists shall be
an affidavit, attached hereto as Exhibit "D" (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 Artists in writing of its Final Acceptance of the Work.
Final Acceptance shall be effective as of the earlier to occur of (1) the date of City's notification
of Final Acceptance; or, (2) the 35th day after Artists have sent the written notice to City
required under Article 2, unless City upon receipt of such notice and prior to the expiration of
the 35-day period, gives Artists written notice specifying and describing anything that has not
been completed pursuant to this Agreement.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L.C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 6 of 36
2.9. Risk of Loss
The risk of loss or damage to the Work shall be borne by Artists prior to Final Acceptance, and Artists
shall take such measures as are necessary to protect the Work from loss or damage until Final
Acceptance, including, but not limited to, the purchase of property loss insurance, except that the risk of
loss or damage shall be borne by City or its agents prior to Final Acceptance during such periods of time
as the partially or wholly completed Work is in the custody, control, or supervision of City or its agents
for the purposes of moving, storing, or performing any other ancillary services to the Work.
ARTICLE 3
COMPENSATION AND PAYMENT SCHEDULE
3.1. Compensation.
Total compensation under this Agreement shall be in the amount of SEVENTY-SIX THOUSAND
ONE HUNDRED SEVENTY DOLLARS AND NO CENTS ($76.170.00), which shall constitute full
compensation for all services to be performed and materials to be furnished by Artists under this
Agreement, including, but not limited to, fabrication, transportation, installation, any remaining Artists'
fees, insurance, incidental costs, all travel expenses and any other costs associated with the Artwork
Design and/or Work. Artists and City may amend this Agreement to allow for additional payment if
additional services are required.
3.2. Payment Schedule.
City agrees to pay 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. FIFTEEN THOUSAND FOUR HUNDRED SIXTY-FOUR DOLLARS AND NO CENTS
($15,464.00) upon full execution of this Agreement.
b. THIRTY FOUR THOUSAND FORTY-SIX DOLLARS AND NO CENTS ($34,046.00)
upon the Contract Manager's verification that fabrication of the Work is 50% complete.
c. NINETEEN THOUSAND FORTY-THREE DOLLARS AND NO CENTS ($19.043.00)
upon the Contract Manager's verification that fabrication of the Work is 100% complete, and the
Work ready to install.
d. SEVEN THOUSAND SIX HUNDRED SEVENTEEN DOLLARS AND NO CENTS
($7,617.00) within thirty-five (35) days after Final Acceptance and receipt by City of such
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 7 of 36
documentation it may require concerning payment of supplies and services rendered to the
Artists [see Article 2.8)].
3.3. Sales Taxes.
City is a tax-exempt organization and no state or local sales taxes or federal excise taxes shall be due
upon the Project. City shall supply the Artists with the "Texas Certificate of Exemption," in
substantially the same form as that attached hereto and incorporated herein as hxhibit "E" for use by
Artists in the fulfillment of this Agreement
3.4. Artists' Expenses.
Artists shall be responsible for the payments of all expenses incurred during the performance of this
Agreement, including, but not limited to, services, materials, mailing/shipping charges and insurance on
submissions to the City and/or Contract Manager, cost of all travel, insurance and costs for Artists'
agents, consultants, and/or employees necessary for the proper performance of the services required
under this Agreement
ARTICLE 4
TERM AND TIME OF PERFORMANCE
4.1. Term.
This Agreement shall be in effect from the Effective Date, and, unless terminated earlier pursuant to
such provisions in this Agreement, shall extend until final payment to Artists by City.
4.2. Duration.
The services to be required of Artists set forth in Article 2 shall be completed in accordance with the
Schedule; provided, however, such time limits may be extended or otherwise modified by written
agreement between Artists and City.
4.3. Early Completion of Artists Services.
Artists shall bear any transportation and storage charges incurred from the completion of their services
prior to the time provided in the Schedule for delivery.
4.4. Time Extensions; Force Mateure.
City or Artists, as appropriate, shall grant a reasonable extension of time to the other party if conditions
beyond the Parties' control or Acts of God, flood, riot, civil insurrection, labor strikes, or orders of local
or federal government render timely performance of the parties' services impossible or unexpectedly
burdensome. The party suffering the impossibility or burdensome conditions must inform the other in
writing within ten (10) business days of the onset of such performance delay, specifying the reasons
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 8 of 36
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 5
WARRANTIES
5.1. Warranties of Title and Copyright.
Artists represent and warrant that:
a. the Artwork Design and/or Work shall be the original product of Artists' sole creative efforts;
b. the Artwork Design and/or Work is and will be unique and original, and does not infringe upon
any copyright or the rights of any person;
c. the Artwork Design and/or Work (or duplicate thereof) has not been accepted for sale elsewhere;
d. Artists have not sold, assigned, transferred, licensed, granted, encumbered or utilized the
•
Artwork Design and/or Work or any element thereof or any copyright related thereto that may
affect or impair the rights granted pursuant to this Agreement;
e. the Artwork Design and/or Work is free and clear of any liens from any source whatsoever;
f. Artists have the full power to enter into and perform this Agreement and to make the grant of
rights contained in this Agreement; and
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.
5.2 Warranties of Quality and Condition
a. Artists represent and warrant that all work will be performed in accordance with professional
"workmanlike" standards and free from defective or inferior materials and workmanship
(including any defects consisting of "inherent vice," or qualities that cause or accelerate
deterioration of the Work) for one year after the date of Final Acceptance.
b. Artists represent and warrant that the Work and the materials used are not currently known to be
harmful to public health and safety.
c. If, within one year after Final Acceptance, City observes any breach of warranty described in this
Article 5.2 that is curable by Artists, City shall give written notice to Artists of such breach with
reasonable promptness. Artists shall, at the request of City cure the breach satisfactorily and
consistent with professional conservation standards (in accordance with the American Institute of
Conservation Code of Ethics and Guidelines for Practice) and/or construction standards,
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 9 of 36
including, but not limited to, any standards set forth by City, within thirty (30) days after receipt
of the written notice, at no expense to City.
d. If, within one year after Final Acceptance, City observes any breach of warranty described in this
Article 5.2 that is not curable by Artists, Artists are responsible for reimbursing City for
damages expenses, and losses incurred by City as a result of the breach. However, if Artists
disclosed the risk of this breach in the proposal and City accepted that it may occur, it shall not
be deemed a breach for purposes of this Article 5.2.
e. If, after one year from Final Acceptance, City observes any breach of warranty described in this
Article 5.2 that is curable by Artists, City shall give written notice to Artists to make or supervise
repairs or restorations at a reasonable fee during Artists' lifetime. Artists shall notify City, in
writing, within thirty (30) days after receipt of the notice as to whether Artists will make or
supervise the repairs or restorations. Should Artists fail to respond within the thirty -day (30)
deadline or be unwilling to accept reasonable compensation under the industry standard, City
may seek the services of a qualified restorative conservator and maintenance expert.
f. Acceptable Standard of Display. Artists represents and warrants that:
i. General routine cleaning and repair of the Work and any associated working parts and/or
equipment will maintain the Work within an acceptable standard of public display.
ii. Foreseeable exposure to the elements and general wear and tear will cause the Work to
experience only minor repairable damages and will not cause the Work to fall below an
acceptable standard of public display.
iii. With general routine cleaning and repair and within the context of foreseeable exposure
to the elements and general wear and tear, the Work will not experience irreparable
conditions that do not fall within an acceptable standard of public display, including, but
not limited to, mold, rust, fracturing, staining, chipping, tearing, abrading, and/or peeling.
iv. Manufacturer's Warranties. To the extent the Work incorporates products covered by a
manufacturer's warranty, Artists shall provide copies of such warranties to City.
g. The foregoing warranties are conditional, and shall be voided by the failure of City to maintain
the Work in accordance with Artists' specifications and the applicable conservation standards If
City fails to maintain the Work in good condition, Artists, in addition to other rights or remedies
Artists may have in equity or at law, shall have the right to disown the Work as Artists' creation
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 10 of 36
and request that all credits be removed from the Work and reproductions thereof until the Work's
condition is satisfactorily repaired.
5.3 Survival of Renresentations and Warranties
The representations and warranties in this Article 5 shall survive the termination or other extinction of
this Agreement.
ARTICLE 6
INSURANCE AND INDEMNITY
6.1. General.
Artists shall carry insurance as set forth in Exhibit "F," which is attached hereto and incorporated herein
for all purposes Evidence of required insurance shall be submitted to the Contract Manager prior to
installation of the Work on City property. However, if any part of the fabrication process will be
conducted on City property, then Artists shall submit evidence of required insurance to the Contract
Manager prior to performance of that work. Evidence of subsequent renewals of said insurance is
required until City has taken possession of the Work. Except as provided in Section 2.9 hereof, the risk
of damage to or loss of the Work, during fabrication and installation but prior to Final Acceptance, shall
be solely that of Artists. The risk shall transfer to City and shall no longer be the responsibility of
Artists upon Final Acceptance.
6.2. Performance Bonds.
Artists shall not be required by City to post any performance bonds or similar undertakings.
6.3. Indemnity
a. General Indemnity
i. ARTISTS COVENANT AND AGREE TO INDEMNIFY, HOLD HARMLESS,
AND DEFEND, AT THEIR OWN EXPENSE, CITY FROM AND AGAINST ANY
AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF
ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT
LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE),
PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF
ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR
PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS'
COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY
DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 11 of 36
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 ARTISTS' NEGLIGENT ACT, ERROR, OR OMMISSION
OF ARTISTS AND/OR ARTISTS' SUBARTISTS AND CONTRACTORS AND
THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS,
MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH
THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NONPERFORMANCE OF THIS AGREEMENT EXCEPT TO THE EXTENT
CAUSED BY THE ACTS OR OMISSIONS OF CITY.
ii. Artists agree to and shall release City from any and all liability for injury, death,
damage, or loss to persons or property sustained by Artists in connection with or
incidental to performance under this Agreement.
iii. Artists 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. Intellectual Property
Artists agree to assume full responsibility for complying with all State and Federal Copyright
Laws and any other regulations, including, but not limited to, the assumption of any and all
responsibilities for paying royalties that are due for the use of other third -party copyrighted works by
Artists. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of
any such fees or financial obligations. City specifically does not authorize, permit, or condone the
reproduction or use of copyrighted materials by Artists without the appropriate licenses or permission
being secured by Artists in advance. IT IS FURTHER AGREED THAT ARTISTS SHALL
RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST
ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE
AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO
WHICH THEY MAY BE SUBJECTED ARISING OUT OF CITY'S USE OR POSSESSION OF
THE WORKS BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR
OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes
no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive
obligation of Artists.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 12 of 36
6.4. Survival
All indemnification provisions of this Agreement shall survive the termination or expiration of this
Agreement.
ARTICLE 7
OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
7.1. Title.
Title to the Work, including, but not limited to, all documents models and/or drawings that constitute or
are components of the Work and/or the Artwork Design, shall pass to City upon Final Acceptance and
payment for the Work. These documents, models and/or drawings will be retained for archival and
exhibition purposes. Artists' Artwork Design, Work, and all other work products under this Agreement
shall become the property of City, without restriction on future use, except as provided below.
7.2 Copyright Ownership.
Artists retain all rights under the Copyright Act of 1976, 17 U.S.C. Section 101 et seq., as the sole
authors of the Work for the duration of the copyright.
7.3 Reproduction Rights.
a. In view of the intention that the Artwork Design and the Work be unique, Artists shall not make
any additional exact duplicate reproductions of the Artwork Design or the Work nor shall Artists
grant permission to others to do so except with the express written permission of City. However,
nothing herein shall prevent Artists from creating future artworks in Artists' manner and style of
artistic expression.
b. By execution of this Agreement, Artists grant to City a perpetual, irrevocable license to
graphically depict or display the Artwork Design and Work for any non-commercial purpose
whatsoever. For purposes of this limitation, any graphic depiction or display of the Artwork
Design and/or the Work intended to promote or benefit City, its public services or its public
purposes, regardless of whether or not a fee is charged to the public, or whether revenue is
otherwise received by City, shall be deemed a non-commercial purpose. Notwithstanding the
above limitation, Artists agree and understand that nothing in this paragraph shall affect or limit
City's absolute, unrestricted rights incidental to City's full ownership of the Work to alter,
change, modify, destroy, remove, move, replace, operate, maintain, transport, sell or transfer, in
whole or in part, the Work when City deems it necessary within its discretion, in order to
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C. AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 13 of 36
otherwise exercise City's powers and responsibility in regard to public works and improvements,
in furtherance of City's operations or for any other reason.
c. All reproductions by City shall contain a credit to Artists and a copyright notice substantially in
the following form: `
date, Artist's name."
d. Unless notified otherwise by City, Artists shall use Artists' best efforts in any public showing or
resume use of reproductions to give acknowledgment to City in substantially the following form:
"an original artwork commissioned by and in the public art collection of the City of Fort Worth,
Texas."
e. Artists may, at Artists' expense, cause to be registered with the United States Register of
Copyrights, a copyright in the Work in Artists' name.
f. City is not responsible for any third -party infringement of Artists' copyright and not responsible
for protecting the intellectual property rights of Artists.
ARTICLE 8
ARTISTS' RIGHTS
8.1. Identification.
The Contract Manager shall include credit to Artists on the Fort Worth Public Art website
(www.fwpublicart.org) and a permanent plaque at the site.
8.2. Maintenance.
City recognizes that maintenance of the Work on a regular basis is essential to the integrity of the Work.
City shall reasonably assure that the Work is properly maintained and protected, taking into account the
maintenance instructions provided by Artists in accordance with Section 2.6 and Exhibit "C," Technical
and Maintenance Record.
8.3. Repairs and Restoration.
a. City shall have the right to determine when and if repairs and restorations to the Work will be
made. During Artists' lifetime and to the extent practicable, City shall give Artists the right to
approve all major repairs and restorations; provided, however, Artists shall not unreasonably
withhold approval for any repair or restoration of the Work. Should Artists unreasonably
withhold approval of any intended major repair or restoration, City shall have the right to make
such repair or restoration. To the extent practicable, Artists, during Artists' lifetimes, shall be
given the opportunity to make or personally supervise major repairs and restorations and shall be
paid a reasonable fee for any such services, provided that City and Artists shall agree, in writing,
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 14 of 36
prior to commencement of any significant repairs and restorations, upon Artists' fee for such
services. Should Artists fail to agree to make or supervise the repairs and restorations, City shall
have the right to choose another entity or person to assist with the restoration and/or repairs or
make said repairs by City.
b. All repairs and restorations shall be made in accordance with recognized conservation standards
(in accordance with the American Institute of Conservation Code of Ethics and Guidelines for
Practice) and/or construction standards, including, but not limited to, the standards set forth by
City.
c. City may require Artists to submit professional documents supporting Artists' proposal for
repairs and restorations prior to commencement of repairs or restorations.
d. When emergency repairs are necessary to prevent the loss of or further damage to the Work or to
prevent risks to the public, such repairs shall be undertaken or arranged by City without advance
notice to Artists, and such repairs shall not be deemed to constitute artistic alteration.
8.4. 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, City shall have
the right to remove the Work by any means, including destruction, in performing maintenance,
repair, renovation, or reconstruction of the building, structure or in devoting realty to a new use.
Artists shall be given written notice that City intends to take such action.
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,
Artists shall be given written notice and ninety (90) days to remove the Work at his or her sole
expense. Upon Artists' failure to remove the Work, City shall have the right to remove and
dispose of the Work by any means, including its destruction.
c. 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, City shall no longer represent the
Work as that of Artists if Artists gives written notice to City that it is the position of Artists to
deny authorship on the grounds stated in this paragraph.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 15 of 36
e. City shall, at all times, have the right to move the Work, or remove it from public display. City
shall also have the right to sell or trade the Work.
8.5. Permanent Record.
City shall maintain on permanent file a record of this Agreement and of the location and disposition of
the Work.
8.6. Artists' Address.
Artists shall notify City of changes in the addresses set forth in Article 15. The failure to do so, if such
failure prevents City from locating Artists shall be deemed a waiver by Artists of the right subsequently
to enforce these provisions of Article 8 that require the express approval of Artists. Notwithstanding
this provision, City shall make every reasonable effort to locate Artists when matters arise relating to
Artists' rights.
8.7. Additional Rights and Remedies.
Nothing contained in this Article 8 shall be construed as a limitation on such other rights and remedies
available to Artists under the law, which may now or in the future be applicable.
ARTICLE 9
ARTISTS AS AN INDEPENDENT CONTRACTOR
Artists shall perform all work and services hereunder as an independent contractor, and not as an officer,
agent, servant or employee of City. Artists 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 Artists,
their officers, agents, employees and subcontractors, and doctrine of respondeat superior has no
application as between City and Artists.
ARTICLE 10
SUBCONTRACTING
The Artists may subcontract portions of the services to be provided hereunder at the Artists' 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 Artists. Any subcontract entered
into under this Agreement shall be expressly subject to the terms of this Agreement. Artists shall
provide information regarding all subcontractors, including its fabricator, along with a copy of the
subcontract between Artists and each subcontractor to the Contract Manager.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L L C , AND TOM ORR, L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 16 of 36
ARTICLE 11
TERMINATION
11.1. 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 Artists or any agent or representative to any City or Contract
Manager official or employee with a view toward securing favorable treatment with respect to the
awarding, amending, or making of any determinations with respect to this performance of this
Agreement.
11.2. Incapacity of Artists
a In the event that Artists become incapable, legally or otherwise, of performing their duties and/or
obligations under this Agreement, City shall have the right to terminate this Agreement on
payment to Artists or Artists' successors for all work and services performed prior to incapacity
All finished and unfinished drawings, sketches, photographs, models, and any other work shall
automatically become property of City.
b. In the event of termination under this Article 11.2, City shall have the right to complete the
Work. Due regard shall be made for Artists' intended results and proper credit and
acknowledgement shall be given to Artists. This provision shall survive the termination or
expiration of this Agreement.
11.3. Termination for Convenience
a. The services to be performed under this Agreement may be terminated by either party subject to
written notice submitted thirty (30) days before termination. The notice shall specify whether
the termination is for convenience or cause.
b. If the termination is for the convenience of City, Artists shall have the right to fees for work
performed, in which event 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 City by Artists under this Agreement prior to the date of termination, provided that
no right to fabricate or execute the Work shall pass to City.
c. If termination is for the convenience of Artists, Artists shall remit to City a sum equal to all
payments (if any) made to the Artists pursuant to this Agreement prior to termination.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 17 of 36
11.4. Termination for Cause
a. If either party to this Agreement shall fail to fulfill their obligations in accordance with the terms
of this Agreement, or otherwise violate any of the covenants, agreements, or stipulations material
to this Agreement, then the Parties shall first attempt to resolve any disputes arising from this
Article 11.4 in accordance with the dispute resolution process set forth in Article 12 of this
Agreement. If the parties cannot resolve the dispute(s), then the disputing party shall thereupon
have the right to terminate this Agreement upon the delivery of a written `Notice of
Termination" specifying the grounds for termination. Termination of this Agreement under this
Article 11.4 shall not relieve the party in default of any liability for damages resulting from a
breach or a violation of the terms of this Agreement.
b. If City terminates this Agreement pursuant to this Article 11.4, then City shall have the right to
complete the Work in accordance with the Artwork Design, which shall be in addition to any and
all other rights and remedies available to City at law or in equity. If City exercises its right to
complete the Work, then:
(1) title to the Artwork Design, Work, and/or all other work product under this Agreement
and the Design Contract, including, but not limited to, all documents, models, and/or
drawings that constitute or are components of the Artwork Design and/or Work, shall
pass to City and become the property of City, without restriction on future use,
immediately upon the City's exercise of its right to complete the Work;
(2) Artists shall forfeit any and all rights to the Artwork Design, Work, and/or all other work
product under this Agreement and the Design Contract, including, but not limited to,
those stated under Articles 7 and 8 of this Agreement;
(3) Artists automatically sell, assign, and transfer to City, their entire right, title, and interest
in and to the Artwork Design, Work, and/or all other work product under this Agreement
and the Design Contract that the Artists have under the Copyright Act of 1976, 17 U.S.C.
SS 101 et. seq., and all the rights and privileges appertaining thereto, including, without
limitation, the exclusive right to reproduce, prepare derivative works based upon,
distribute copies to the public as well as display said Artwork Design and/or Work, the
same to be held and employed by City for City's own benefit and use and for the benefit
and use of City s successors, assigns, and legal representatives forever;
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 18 of 36
Artists shall have no copyright or other property interest in the Artwork Design, Work,
and/or any other work product under this Agreement and the Design Contract; and
Artists pursuant to this Article 11.4, hereby acknowledges the rights of attribution and
integrity conferred by Section 106A(a) of Title 17 of the U.S. Code, (as amended or as it
may be amended in the future) Titled "Visual Artists Rights Act,' and any other right of
the same nature granted by U.S. federal, state, or foreign laws, and of his/her own free act
hereby waives such rights with respect to any and all uses of the Artwork Design, Work,
and/or all other work product under this Agreement and the Design Contract as a public
artwork. Nothing in this section 11.4 shall affect the survival of Articles 5, 6, and 9 of
this Agreement, which shall remain in full force and effect upon termination of this
Agreement.
ARTICLE 12
DISPUTE RESOLUTION
If either Artists or City has a claim, dispute, or other matter in question for breach of duty
obligations, services rendered or any warranty that arises under this Agreement, the parties shall first
attempt to resolve these issues through this dispute resolution process. The disputing party shall notify the
other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall
state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business
days of receipt of the notice, both parties shall make a good faith effort, either through email, mail, phone
conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach, or other
matter in question that may arise out of, or in connection with this Agreement.
If the Parties fail to resolve the dispute within sixty (60) 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 (45) days following the date of request, except upon Agreement of both 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 thirty (30) 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,
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 19 of 36
Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court
having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of
this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then
either party shall have the right to exercise any and all remedies available under law regarding the dispute.
(See Article 11.4).
ARTICLE 13
EQUAL OPPORTUNITY
a. Artists shall not discriminate against any employee or applicant for employment because of age,
disability race, color, religion, sex, sexual orientation, national origin, familial status,
transgender, gender identity, or gender expression. Artists shall take affirmative action to ensure
that employees are treated equally during employment, without regard to their age, disability,
race, color, religion, sex, sexual orientation, national origin familial status, transgender gender
identity, or gender expression. 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, but not limited to, apprenticeship. Artists agree to post in
conspicuous places, available to employees and applications for employment, notices to be
provided by City setting forth the provision of this nondiscrimination clause.
b. Artists shall, in all solicitation or advertisements for employment placed on or on behalf of
Artists, state that all qualified applicants shall receive consideration for employment without
regard to race, color, religion, sex, sexual orientation, national origin, familial status,
transgender gender identity, or gender expression.
c. Artists 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 Artists' noncompliance with the nondiscrimination clauses of this Agreement, this
Agreement may be canceled, terminated, or suspended in whole or in part, and the Artists may
be debarred from further agreements with the City of Fort Worth.
ARTICLE 14
MISCELLANEOUS
14.1. Compliance.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L.C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 20 of 36
Artists shall comply with Federal, State and City statutes, ordinances and regulations applicable to the
performance of the Artists services under this Agreement.
14.2 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.
14.3. 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.
14.4. 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.
14.5. Governing Law and Venue.
If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this
Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be
construed in accordance with the laws of the State of Texas.
14.6. 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 Artists and their respective successors and permitted assigns.
14.7. No Third -Party Beneficiaries.
The provisions and conditions of this Agreement are solely for the benefit of City and Artists, and any
lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any
other person or entity.
14.8. Severability.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 21 of 36
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.
14.9. 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.
14.10. 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 City to fulfill its obligations under this Agreement City may terminate
this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to the Artists
of written notice of City s intention to terminate or (ii) the last date for which funding has been
appropriated by the Fort Worth City Council for the purposes set forth in this Agreement.
14.11. Captions.
Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a
part of this Agreement.
14.12. Artists' Address.
Artists shall notify the Contract Manager of changes in address.
14.13. Surviving Covenants.
The covenants and obligations set forth in this Agreement shall not survive the death or legal incapacity
of the Artists.
14.14. Right to Audit.
Artists agree that City will have the right to audit the financial and business records of Artists 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, Artists shall make all Records available to the City on 1000
Throckmorton Street, Fort Worth, Texas or at another location in City acceptable to both parties
following reasonable advance notice by City and shall otherwise cooperate fully with City during any
audit. Notwithstanding anything to the contrary herein, this Section 14.14 shall .survive expiration or
earlier termination of this Agreement.
14.15. Certified MWBE.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 22 of 36
If applicable Artists shall make their best effort to become a certified Minority/Women Business
Enterprise (M/WBE) firm with a certifying agency whose certification is accepted by the City under the
City's M/WBE ordinance.
14.16 Survival Provision
The provisions contained in Articles 5 (Warranties), 6 (Indemnity provision), and 9 (Artists as
Independent Contractor) shall survive the termination or expiration of this Agreement.
14.17 Public Information Act
Artists understand and acknowledge 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. Artists shall clearly indicate to City what information it deems proprietary. If City
is required to disclose any documents that may reveal any of Artists 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 Artists prior to disclosure of such documents, and give
Artists the opportunity to submit reasons for objections to disclosure. City agrees to restrict access to
Artists' information to those persons within its organization 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 Artists' information in the same
manner and to the same degree it protects its own proprietary information• however, City does not
guarantee that any information deemed proprietary by Artists will be protected from public disclosure if
release is required by law. The foregoing obligation regarding confidentiality shall remain in effect for a
period of three (3) years after the expiration of this Agreement.
14.18 Counterparts and Electronic Signatures
This Agreement may be executed in several counterparts, each of which will be deemed an original, but
all of which together will constitute one and the same instrument. A signature received via facsimile or
electronically via email shall be as legally binding for all purposes as an original signature.
14.19 Time Extensions
The Parties may agree, in writing, to extend or modify any of the time deadlines set forth in this
Agreement.
ARTICLE 15
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 23 of 36
NOTICES
All notices, requests, demands, and other communications which are required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery
or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail,
return receipt requested, postage prepaid, as follows:
1. CITY OF FORT WORTH: Fernando Costa, Assistant City Manager
City of Fort Worth
City Manager's Office
1000 Throckmorton Street
Fort Worth, Texas 76102
Copies to:
ARTISTS:
Sarah Fulienwider, City Attorney
City of Fort Worth
Office of the City Attorney
1000 Throckmorton Street, Third Floor
Fort Worth, Texas 76102
Martha Peters, Vice President - Public Art
Arts Council of Fort Worth & Tarrant County
1300 Gendy Street
Fort Worth, Texas 76107
Frances Stevens Bagley, Managing Member.
Frances Bagley L.L.C.
8157 Barbaree Blvd.
Dallas, Texas 75228
Thomas Covey Orr, Managing Member
Tom Orr, L.L.C.
8157 Barbaree Blvd.
Dallas, Texas 75228
[SIGNATURES APPEAR ON FOLLOWING PAGE]
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 24 of 36
IN WITNESS HEREOF, the Parties hereto have executed this .Agreement on the Effective Date.
CITY OF FORT WORTH
by:
Fernando Costa
Assistant City Manager
APPROVED AS TO FORM.
Tyler F Wallach
Assistant City Attorney
ATTESTED BY
Marty Hendrix
City Secretary
ContractAuthorization:
M&C C-25143Date: September 13, 201
FRANCES BAGLEY, L.L.C.
by:
France/Stevens Bag
Managing Member
TOM ORR, L.L.C.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS TRANCES BAGLEY L.L C., A.NI) TOM ORR, L.L.C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE, STATION #27
Thomas Covey Orr
Managing Member
•
Page 25 of 36
OFFICIAL RECORD
CITY SECRETARY
Ft WORTH, TX
IN WITNESS HEREOF, the Parties hereto have executed this Agreement on the Effective Date.
CITY OF FORT WORTH
by:
Fernando Costa
Assistant City Manager
APPROVED AS TO FORM:
Tyler F. W/a:l:lach
Assistant:ity Attorney
ATTESTED BY:
Marty Hendrix
City Secretary
Contract Authorization:
M&C # C-25143Date: September 13, 2011
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FRANCES BAGLEY, L.L.C.
by:
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Managing Member
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by:
Thomas Covey Orr
Managing Member
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AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L. L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
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Exhibit A: Artwork Design
Model of selected design and design in context of FS #27
The Work will consist of an undulating, free-standing metal sculpture, which will be 8-feet high
(at its highest point), 29-feet long, constructed of silver, powder -coated solid steel rods, and designed to
resemble a line drawing of a fountain, creating a waterfall -like, moire effect and visible from Precinct
Line Road and Trinity Boulevard
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L L C , AND TOM ORR, L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 26 of 36
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AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L L C
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
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Page 27 of 36
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Page 28 of 36
AGREEMENT BETWEEN THE CITY OF FORT WORT ORR L.L.C.
L.L.C. STATION #27
AND ARTISTS FRANCES gAGLEY TWORK FOR FIRE
FOR COMMISSION OF P IC AR
Exhibit C: Technical and Maintenance Record
GENERAL INFORMATION
Artists:
Address:
Telephone:
Cell:
E-mail:
Gallery Affiliation:
Other Representation:
ARTWORK
Title of Artwork:
Project Name and Location
Address:
FWPA Project Manager:
Description of Artwork:
(attach separately if necessary):
Artwork Dimensions:
Height: Width: Depth:
Pedestal or Pad Material:
Pedestal or Pad Dimensions:
Height: Width: Depth:
Location & Description of Signature Markings (or copyright):
Edition Information if applicable:
Date of Execution:
Place of Execution:
Collaborating Artist:
Fabricator (if other than Artists)
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 29 of 36
Exhibit C: Technical and Maintenance Record
Fabricator Address:
Methods/Materials Used in Execution of Artwork
Materials (list type, brand name and manufacturer of all materials• attach Material Safety & Technical
Data. Include contact names for all suppliers and attach warranty information):
Construction Description: (list all fabricators and any architects, engineers or other technicians involved
in the creation and installation of this artwork. Attach all warranties & agreements)
Material(s) Specifications:
Joining Methods:
Welding Rod Alloy or Joint Material & Application Method:
Casting Alloy, Wax Body, Glass or Fiber Type:
Finishes & Coatings (paint color and type, glaze, patina, any and all coatings including fixative, UV,
graffiti, etc. Please list vendors and contact information and provide all product information):
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 30 of 36
Exhibit C: Technical and Maintenance Record
Pedestals, Foundations & Footings, Mounting and Attachment Applications
(List all materials used to install artwork on site. Include vendor information, parts numbers, warranties
and agreements.)
Integrated Components
(List all components included in design and fabrication contracts that function as a part of the final
installation including but not limited to: lighting, media, landscaping etc. Include all vendor
information, parts numbers, warranties and agreements and any/all design schematics):
Installation
Installation Date:
Installation Method: (describe installation method, provide photo documentation if available List name
and contact information of installation crew. Attach any diagrams or disassembly instructions.)
Recommended Routine Maintenance
Artists recommendation based on experience and consultation with conservation expert
Artist's Conservation Consultant
Name:
Address:
Phone:
(Please attach Conservator's Long Term Maintenance Recommendations)
Unusual or Special Circumstances of Note
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 31 of 36
•
Artists' Intention
(Please desciibe your view of how the artwork will change over time and in response to environmental
conditions. The artists' vision of how the artwork will look in the future assists FWPA in realizing an
appropriate conservation action plan. In addition to environmental conditions public artworks are often
affected by public handling, landscaping and site changes. Please clearly detail your expectations for this
artwork. Please address issues related to the life expectancy of this artwork.)
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L.C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 32 of 36
Exhibit D: Affidavit
AFFIDAVIT OF BILLS PAID
Date:
Affiant:
Purchaser:
Property:
Affiant on oath swears that the following statement is true:
Affiant has paid each of Affiant's contractors, laborers, and materialmen in full for all laboi and
materials provided to Affiant for the construction of any and all improvements on the property. Affiant
is not indebted to any person, film, or corporation by reason of any such construction. There are no
claims pending for personal injury and/or property damages.
Affiant:
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the day of
, 20
Notary Public, State of Texas
Print Name
Commission Expires
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 33 of 36
Exhibit E: Sales Tax Exemption
TEXAS CEII CIFICATE OF EXI MPTION
1 claim :nt exemption from pay tit of rules and use tax c; for tl
below or on the attached onier or invoice,
Description of hems (or an attached other or tm-aice) To Re Purchased
1 claim this exemption for the following ream
Nance of Exempt Organization_ CITY OF FORT WORTII, I'EX S
TEXAS SALES AND USE TAX PERMIT NUMBER 1-75-f(l1)0528-6
Project for which matt I and supplies :iris purchased:
1 understand that 1 will be liable for payment ofsales tax. which may become due for ftilurc to comply
with the provisions of the state, city, andlor metropolitan transit authority sales and use tax laws and
comptroller rules rcgmrding exempt purchases. Liability for the tax will be determined by the price paid
fit the taxable items purchased or the fair market rental value for the period of time used.
I understand that it is a mi.sdctneattor to give an exemption cenilicute to the seller for taxable items which
I know. al the time of the purchase, will be used in a manner other than that expensed in this certificate
and, upon conviction, may be fined up to 5500 per offense.
.Exetnet Status Due to Heine a Governmental Entity
Purchaser; CITY OF FORT WORTH, TEXAS
Street Address: 1000 TIIROCKMORTON STREET
City. Slate. Zip Code: FORT WORTH. TEXAS 76102
Sipe Here_
Date: June I I, 201 Phone: 8l;-39' t%„l`
This certificate doe`-s riot require a number to be valid, Sales and use tax et pilot' number; or "C
exempt" numhcrs ilea not exist,
phis certificate should he furnished to the supplies, DO out .send till complel4'd citrtr4ate to the
Comptroller of Public Aeiiruuts,
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 34 of 36
Exhibit F: Insurance Requirements
PUBLIC ART PROJECTS - INSURANCE REQUIREMENTS
Artists shall meet all the following insurance requirements for this Project, naming City as an additional
insured on each policy of insurance, except Workers Compensation. If Artists subcontract fabrication
transportation, and/or installation of the Work, then Artists shall also require his/her subcontractor(s) to
abide by all of the following insurance requirements. Artists shall require the subcontractor(s) to name
Artists and City as additional insureds
Commercial General Liability (CGL)
$1,000,000 Each occurrence
$2,000,000 Aggregate limit
Coverage shall include, but not be limited to, the following: premises, operations, independent
contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be
provided on an occurrence basis and be as comprehensive as the current Insurance Services Office
(ISO) policy. The policy shall name City as an additional insured.
Automobile Liability
$1,000,000 Each accident
or
$250,000 Bodily Injury per person
$500,000 Bodily Injury per occurrence
$100,000 Property Damage
A commercial business policy shall provide coverage on "Any Auto," defined as autos owned, hired and
non -owned.
For Artist and/or Artist's Subcontractors who have employees: Workers' Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease - per each employee
$500,000 Bodily Injury/Disease - policy limit
Workers' Compensation coverage shall provide limits consistent with statutory benefits outlined in the
Texas workers' Compensation Act (Art 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.)
GENERAL POLICY REQUIREMENTS
Thirty (30) days notice of cancellation or non -renewal.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 35 of 36
Example: "This insurance shall not be cancelled or non -renewed, until after thirty (30) days prior written
notice has been given to City of Fort Worth, except for ten (10) days notice for non-payment of
prem ium.
Waiver of rights of recovery (subrogation) in favor of City of Fort Worth.
The insurers for all policies must be licensed/approved to do business in the State of Texas. All insurers
must have a minimum rating of A- VII in the current A. M. Best Key Rating Guide or have reasonably
equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below
that required, written approval of Risk Management is required.
If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability
insurance for any differences is required. Excess Liability shall follow form of the primary coverage.
"Unless otherwise stated, all required insurance shall be written on an "occurrence basis." (If coverage
is written on a claims -made basis, the retroactive 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 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 City of Fort Worth in regards to asset value and
stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance
pools or risk retention groups, must also approved by City's Risk Manager.
City, at its sole discretion, reserves the right to review the insurance requirements and to make
reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by
City based upon changes in statutory law, court decision or the claims history of the industry as well as
of the contracting party to City of Fort Worth. City shall be required to provide prior notice of ninety
days.
City shall be entitled, upon request and without expense, to receive copies of policies and endorsements
thereto and may make any reasonable requests for deletion or revision or modifications of particular
policy terms, conditions, limitations, or exclusions except where policy provisions are established by
law or regulations binding upon either of party or the underwriter on any such policies.
AGREEMENT BETWEEN THE CITY OF FORT WORT
AND ARTISTS FRANCES BAGLEY, L.L.C., AND TOM ORR, L.L.C.
FOR COMMISSION OF PUBLIC ARTWORK FOR FIRE STATION #27
Page 36 of 36
M&C Review
Page 1 of 2
DATE:
CODE:
SUBJECT:
COUNCIL ACTION: Approved on 9/13/2011
9/13/2011 REFERENCE
NO.:
C
**C-25143
TYPE: CONSENT
LOG NAME:
PUBLIC
HEARING:
Authorize Execution of an Artwork Commission Contract with Artists Frances Bagley,
L.L.C., and Tom Orr, L.L.C., in the Amount of $76,170.00 fora Sculpture to Be Installed in
Front of Fire Station No. 27 Located at 2940 Precinct Line Road (COUNCIL DISTRICT 5)
Official site of the City of Fort Worth, Texas
FORT WORTH
20WATERFALL SCULPTURE
AT FIRE STATION 27
NO
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to enter into an Artwork
Commission Contract with artists Frances Bagley, L.L.C., and Tom Orr, L.L.C. in the amount of
$76,170.00 for a sculpture to be installed at Fire Station No. 27.
DISCUSSION:
The Artwork Commission Contract will enable the artist team of Frances Bagley, L.L.0 , and Tom Orr
L L.C., to proceed with fabrication and installation of an undulating, free-standing metal sculpture on a
landscaped berm in front of Fire Station No. 27. Constructed of silver, powder -coated, one -inch
diameter solid steel rods, the sculpture is in the shape of a cascading waterfall, with the rods creating
a moire effect. It will stand eight feet tall at its highest point and will be 29 feet in length. The sculpture
will be visible to visitors of Fire Station No. 27 as well as passersby on Precinct Line Road and Trinity
Boulevard
The 2011 Fort Worth Public Art Annual Work Plan, adopted by City Council October 19, 2010 (M&C
C-24554), includes the Fire Station No. 27 project. The funding source for this project is two percent
public art funds derived from the 2004 Capital Improvements Project (CIP) Proposition No. 4.
BACKGROUND.
On October 8, 2007, the Fort Worth Art Commission (FWAC) approved the artist selection panel's
recommendation of Frances Bagley, L.L.C., and Tom Orr L.L.C., to fabricate and install an artwork
for Fire Station No. 27 based upon a proposal for an abstract sculpture composed of ladders
depicting the concepts of energy and action. The artists were placed under a Design Contract
(CSC No 36878, no M&C required) in April 2008. The Artists final design was approved by the
FWAC on January 9, 2009. Subsequently, however, firefighters who have since been assigned to the
new Fire Station No 27 requested that the artwork reflect their orderliness in the face of
emergencies. As a result, the FWAC requested that the Artists prepare a new design, with input from
firefighters and the steering committee. The Artists presented their new final design to the FWAC on
Monday, April 11, 2011, where it was approved.
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 5.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current capital
budget, as appropriated, of the Fire Improvements Fund.
http.//apps.cfwnet.org/council_packet/mc review.asp7ID=15543&councildate=9/13/2011 11/10/2011
M&C Review Page 2 of 2
TO Fund/Account/Centers FROM Fund/Account/Centers
C235 541200 205980013280 $76.170.00
Submitted for City Manaaer's Office by: Fernando Costa (6122)
Oriainatina Department Head: Douglas W. Wiersig (7801)
Additional Information Contact: Martha Peters (298-3025)
ATTACHMENTS
Fire Station 27 Exhibit A Site Plan.docx
Fire Station 27 Exhibit B Final Design .doc
http://apps.cfwnet.org/council_packet/mc review.asp9ID=15543&councildate=9/13/2011 11/10/2011